Academic Freedom and Tenure: University of Florida

Academic Freedom and Tenure: University of FloridaSource: AAUP Bulletin, Vol. 56, No. 4 (Dec., 1970), pp. 405-422Published by: American Association of University ProfessorsStable URL: http://www.jstor.org/stable/40224490 .

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A XA^cademic Freedom and Tenure:

UNIVERS TY OF FLORIDA1

This report examines the denial of reappointment and tenure at the University of Florida to Dr. Marshall B. Jones. Recommendations of the chairman and faculty of his department and the dean of his college that Dr. Jones

1 The text of this report was written in the first instance by the members of the investigating committee. In accordance with Association practice, the text was sent to the Associa- tion's Committee A on Academic Freedom and Tenure, to the teachers at whose requests the investigation was conducted, to the administration of the University of Florida, to the chapter president, and to other persons directly concerned in the report. In light of suggestions received, and with the editorial assistance of the Association's Washington Office staff, the report has been revised for publication.

In his prepublication comments on a preliminary draft of the report (see also footnotes infra and Addenda B and C to this report), President O'Connell called attention to the following matters of concern to him in the case of Dr. Jones and in the inquiry into it by the investigating committee: (a) his own understanding of the reasons given by former President J. Wayne Reitz and Graduate Dean L. E. Grinter for opposing the granting of tenure to Dr. Jones; (b) the due process which characterized the considerations of the Jones case by the faculty and administration of the University of Florida; (c) the fact that the Majority Report of the University Senate Committee on Academic Freedom and Tenure states that Dr. Jones failed to satisfy the burden of proof resting on him to show that tenure was withheld for reasons violative of his academic freedom; (d) the fact that the investigating committee, in light of its inquiries and the documentary evidence furnished it, accepted the findings and conclusions of the Minority Report of the Senate hearing committee; and (e) the faulty procedures, in the view of the President, which characterized the investigation, particularly the committee's failure to inform the administration of all facts obtained during its visit, as well as the identity of the sources of those facts, which it proposed to use in its report.

be granted tenure were rejected by the University's Per- sonnel Board. Dr. Jones was notified on June 27, 1967, when he was completing his fifth year of service at the

University, of the decision to deny tenure and of the termination of his probationary appointment as of June

30, 1968. Contending that the University's action violated his

academic freedom and standards of academic due process, Dr. Jones requested a hearing before the University Sen- ate Committee on Academic Freedom and Tenure. After

holding a hearing on his charges that the denial of tenure was based on a speech and article by him discussing "The Role of the Faculty in Student Rebellion," the Senate Committee sustained the denial of tenure by a vote of three-to-two. President Stephen C. O'Connell, who had succeeded former President J. Wayne Reitz at the be-

ginning of the academic year 1967-68, accepted the

majority report of the Senate Committee as a final dis-

position of the case. Dr. Jones was separated from the

University at the end of the academic year 1967-68. The advice and assistance of the Association were

sought and were given throughout the consideration of the case by various agencies of the University of Florida. After a study of the extensive file of documents and

correspondence in the case, the General Secretary authorized an investigation, which had been requested by Dr. Jones and the Association's local chapter. The under-

signed ad hoc investigating committee visited the Uni-

versity of Florida campus on May 5 and 6, 1969, and interviewed the President, former President J. Wayne Reitz, Vice President Frederick W. Conner, a former Vice President, a representative of the Board of Regents,

WINTER 1970 40^



two deans, Dr. Jones, and twelve members of the Uni- versity faculty. The chairman of the committee again visited the campus on April 7 and 8, 1970, together with an investigating committee of the Association of Ameri- can Law Schools, consisting of Professors Ralph F. Fuchs (Law, Indiana University) and Melvin Dakin (Law, Louisiana State University) to inquire into the circumstances attending the summary termination of the serv- ices of three members of the University faculty in late November, 1969, for refusing to take a loyalty oath.

Before turning to a more detailed recital of the relevant facts and an analysis of the governing principles in this case, the investigating committee wishes to acknowledge the time, the care, and the seriousness the members of the

University administration have devoted to the case of Dr. Jones and the loyalty oath dismissals. As indicated above, the recommendation regarding Dr. Jones was considered on two separate occasions by the Personnel Board, the second time after the case had been reopened on a presentation by the dean of his college and the chairman of his department. Dr. Jones was afforded an opportunity to challenge the denial of his tenure before an all-faculty committee elected by a faculty body, and the decision of that committee was adverse to his contentions. After a

study of the record and reports made in the hearing before the faculty committee and listening to arguments on behalf of counsel for Dr. Jones, President O'Connell sustained the decision to deny tenure originally made during his predecessor's administration. Dr. Jones was informed that he had a right of appeal to the Board of Regents, and he did invite the Board to overrule the President. The University thus cannot be faulted on its obligation to provide forms for academic due process in the case of Dr. Jones. The loyalty case dismissals are a different matter, however, since no comparable steps were available to those terminated in November of 1969.

Notwithstanding the elaborate procedures pursued in the case of Dr. Jones, the investigating committee finds, as more fully explained hereafter in this report, that acceptable standards of academic due process were not recognized and respected, and acceptable standards of academic freedom were not applied, by the agencies of the University engaged in reviewing the case. The orga- nizational structure and procedures necessary for afford- ing a fair hearing to one who charges an infringement of his academic freedom are indeed essential to academic process. If the inquiry of an investigating committee of the Association could not extend beyond the examination of the structure and procedures provided, however, the Association would be unable to give consideration to complaints of a denial of academic freedom whenever the

appearance and the form of due process had been provided. It is the experience of the Association in such cases, as it is the experience of the courts in cases presenting complaints of the denial of constitutional rights in the course of administration of criminal and civil justice, that if fundamental rights are to be protected there must be a review of the standards applied and an examination of the factual premises of the decision.

Nor can the Association be confined to the formal recitals of the record made in a proceeding conducted in accordance with the established procedures of the Univer-

sity, even though the procedures themselves are not ob-

jectionable. In undertaking to fulfill its commitment to

protect the academic freedom of university professors, the Association has found it necessary to inquire into matters that do not appear in the formal record. When, as in this

case, the committee receives and considers information

beyond that acknowledged to be considered by an institution in the course of its own decision-making and review-

ing processes, a respect for the canons of fairness demands that the institution be afforded ample opportunity to ex-

plain and confute any material regarded as adverse to the institutional position. The committee has sought to be sensitive to this obligation by submitting a preliminary draft of the report of its findings and conclusions to the members of the University administration identified as

having roles in the decisions rendered in the cases involv-

ing Dr. Jones and those dismissed for refusal to take the loyalty oath.

As indicated at several points in this published report, the committee received five responses from members and former members of the University administration, includ-

ing a fifty-three-page statement submitted by President O'Connell. The committee has been considerably aided

by these conscientiously prepared comments on the preliminary report, and a number of changes were made in the report to reflect differences in the perception of relevant facts. In a number of instances, references to

particular events and assertions were deleted because controverted and deemed to have insufficient bearing on the committee's ultimate judgment to justify discussion in the report. While the committee is grateful for the clarification of the University's position and the correc- tions in matters of fact proffered by the responses received, it has found in them no basis for revising its

findings and conclusions as set out in the final paragraph of this report.

Background

Dr. Jones joined the faculty of the College of Medicine of the University of Florida in 1 962 as Assistant Professor of Psychiatry and Psychology. In August of 1966, which was the beginning of his fifth year at the University, the Chairman of the Department of Psychiatry recommended to the Dean of the College of Medicine that Dr. Jones be granted tenure. The recommendation on behalf of Dr. Jones was approved by the Dean of the College of Medi- cine and forwarded to the President of the University. According to President O'Connell, such a recommendation could have been made during the third or fourth year of Dr. Jones's service at the University of Florida.

Actions of the Personnel Board

In accordance with University regulations and practice, the tenure recommendation came before the Personnel Board. The Board consisted of the President, the Execu- tive Vice President of the University, the Vice President for Academic Affairs, the Dean of the Graduate School,

406 AAUP BULLETIN



and four faculty members appointed by the President. The Board considered and voted on the recommendation

respecting Dr. Jones at two separate sessions, the first of which occurred near the end of the academic year 1966-67.

The discussion at this first meeting of the Personnel Board to consider the recommendation regarding Dr. Jones was reported to be minimal. According to one of the faculty members of the Board, Dean L. E. Grinter of the Graduate School was critical of Dr. Jones's defense of a master's thesis submitted by a graduate student work-

ing under his supervision; that dispute will be discussed below. This same faculty member protested against allow-

ing a difference of judgment involving a thesis submitted

by a single student to override a recommendation for tenure strongly supported by a faculty member's department. At the conclusion of this meeting, held on May 3, 1967, the Personnel Board, by a vote of seven to one, recommended denial of tenure to Dr. Jones.

Dr. Jones and the Dean of the College of Medicine were notified forthwith of the action of the Personnel Board on the recommendation. No reasons were given, though the member of the Board who dissented from its decision had requested the President to give the College notice of the reasons for the Board's action. The Dean of the College of Medicine promptly requested and obtained

permission to appear before the Personnel Board and to seek reconsideration of its action. The Dean and the

Chairman of the Department of Psychiatry of the College of Medicine and the Chairman of the Department of

Psychology of the College of Arts and Sciences appeared before the Personnel Board on May 23, 1967, to support the recommendation on behalf of Dr. Jones. On the votes

of two faculty members, all other members abstaining, the

Board reopened the Jones case. The Personnel Board met on June 8, 1967, for the

reconsideration of the case of Dr. Jones. In the mean- time a resolution of the faculty of the College of Medi-

cine, adopted unanimously and supporting tenure for Dr.

Jones, was forwarded to the President.2 The discussion at this session of the Board was extended. President Reitz

read portions of Dr. Jones's article, in the January, 1966, issue of the Educational Forum (vol. 3, pp. 135-42), entitled "The Role of the Faculty in Student Rebellion."

According to an accompanying editorial note, the article was "a slightly modified version of a talk given to the

University of Florida chapter of Kappa Delta Pi initiation

meeting, May 6, 1965, under the title of The Role of the Teacher in Social Change.'" Executive Vice President F. W. Conner, a member of the Board, read a statement which he had prepared that was explanatory of his reason for voting against the recommendation of tenure for Dr. Jones. The statement, set out in full in Addendum A to

this report, includes the following sentences:

My primary reason for this decision is that he [i.e., Dr. Jones] has publicly urged in speech and print a principle of action which is contrary to, and potentially destructive of, the principles on which true universities must be organized. Dr. Jones's principle, set forth in ... [the address and article referred to above], is that the only practicable way in which significant changes can be achieved inside or outside a university is by rebellion and that democratic and other orderly processes are merely means of ratifying and implementing the changes thus forced. As organizations committed to the processes and procedures of reason, I do not believe that universities can consistently or safely condone such preachment of strife as a standard mode of change.

President Reitz approved Vice President Conner's state-

ment and, indeed, as will later appear, incorporated portions of sentences quoted above in his own explanation of the reasons for the action on the tenure recommenda-

tion as given to the Executive Committee of the College of Medicine.

Vice President Conner attached to his statement illus-

trative excerpts from Dr. Jones's address (included in

Addendum A to this report). While he thought there

were "other issues which enter into the question of Dr.

Jones's candidacy for tenure, . . . this seems ... the cru-

cial one ... and more than sufficient reason for a decision

against awarding tenure." The investigating committee talked to seven of the

eight members of the Personnel Board, and before turning to the later developments in the case it will be helpful to

summarize here the results of these interviews. Vice President Conner's position in the interview with

the investigating committee was entirely consistent with

that set forth in his written statement. He observed that

some people want to exercise rights of tenure before they have acquired them. Since the issue was one of academic

freedom, for him academic freedom thus appeared to

have different meaning when invoked by one seeking tenure and when asserted by a tenured faculty member.3

2 According to information received by the investigating committee, between May 3 and 23, 1967 a petition requesting that tenure be granted, signed by every member of the De- partment of Psychiatry (about thirty), was presented to the President, and on May 31, 1967, the Faculty Council of the College of Medicine unanimously adopted a resolution calling upon "President Reitz and the Personnel Board to take swift and energetic action to grant tenure to Dr. Marshall B. Jones."

In a prepublication letter to the Washington Office dated July 2, 1970, Dr. Reitz stated that he did not receive or see the petition. He also stated that "it would appear from the record that the Department was unanimous in recommending Dr. Jones for tenure," but he said that a member of the De- partment nevertheless was opposed to the recommendation, as was "one of the most prestigious members of the Executive Committee of the College of Medicine."

3 Vice President Conner, in a prepublication letter to the

Washington Office dated July 30, 1970, stated that he believes "that a professor has precisely the same right to academic freedom before the award of tenure as afterward." The same letter ends with this paragraph:

Statements of principles of professional behavior like that of Dr. Jones become especially important, and are certainly relevant, at the time of making tenure decisions. The reason for this is that tenure decisions are prospective rather than retrospective and focus on the question which our Univer-

sity Constitution has for many years required our President to answer: will the granting of a virtual lifetime appointment to the person under consideration "serve the best interests of the institution"? What might be tolerated at another time cannot be ignored at this time.

407 WINTER 1970



The granting of tenure, he said, is a discretionary act; it

may be withheld because a candidate is a disagreeable person. Dr. Conner manifestly did not regard the scope of discretion vested in the President or the Personnel Board as limited in any way by the recommendation received from the faculty member's department. Dr. Conner's position on the rights of nontenured faculty is treated later in this report.

One of the faculty members of the Board acknowledged that for him the statement by Vice President Conner ex-

pressed the key consideration in the case. Also, he

thought the evidence indicated that Dr. Jones exploited the students who came under his sway. This member was not much affected by the controversy involving the role of Dr. Jones in defending his student's thesis, but such doubts as those raised concerning Dr. Jones's qualifications he thought should be resolved against the candidate in view of the long-term commitment a university makes in granting tenure.

Another faculty member of the Board identified several matters that for him cast doubt on Dr. Jones's qualifications: (1) the delay of his department until the fifth year in submitting a recommendation for tenure; (2) the failure of the Provost of the College of Medicine to sign the letter recommending tenure for Dr. Jones; (3) Dr. Jones's modest record of publication; 4 and (4) the personal defense by Dr. Jones of the graduate thesis done under his supervision. According to a second prepublication comment submitted by President O'Connell and received at Association headquarters on November 27, 1970, this faculty member has stated that at the time of the hearing he thought the speech and published article of Dr. Jones did not warrant denial of tenure; he stated further, however, that he did not feel that the speech and publication were protected activities under principles of academic tenure.

Dean Grinter of the Graduate College was explicit that Dr. Jones's extracurricular utterances and activities had not concerned him. He had made an adverse judgment of Dr. Jones's academic integrity, honesty, and objectivity because of what he saw as the latter's emotional involvement in defending the inadequate thesis of a student working under him.

The Vice President for Academic Affairs, who served on the Board at the time of the consideration of the recommendation for Dr. Jones, has since left the University

but returned for the interview with the investigating committee. He explained the role of the Personnel Board in

passing on tenure recommendations as that of a review-

ing authority that could assume a University-wide perspective and presumably thus exercise an independent judgment. The Board members, he thought, had the

advantage of being free of personal association with the candidates for tenure and of defensiveness arising out of

personal responsibility for decisions made and policies followed in the candidate's department or college. The former Vice President said he frequently voted against tenure in an effort to elevate standards for permanent faculty of the University. He had voted against Dr. Jones in the first instance because of doubts as to his intellectual

integrity and evidence of his emotional involvement with students. He had been influenced by Dean Grinter's

report of his experience with Dr. Jones in connection with the graduate thesis. He explained to other members of the Board that at the second hearing he was changing his

vote, though not his mind, on the recommendation because of the symbolic significance of the case to the

faculty. He acknowledged that he had been influenced by spokesmen for the College of Medicine who objected to the Board's disregard for Dr. Jones's academic merit and its weighing of improper considerations in the initial re-

jection of the College's recommendation. He felt the

damage inflicted on faculty morale by the denial of tenure more injurious to the University than any damage Dr. Jones could inflict. He nevertheless retained doubts as to whether Dr. Jones's academic judgment might not be im-

paired by his activist inclinations. For him the case raised the question of whether an activist can be denied tenure.

The final vote of the Board was five to three to dis-

approve the recommendation, two faculty members join- ing with the Vice President for Academic Affairs in

favoring the grant of tenure. According to one of the

faculty members on the Board, President Reitz then indicated that he would have declined to recommend tenure for Dr. Jones in any event. Dr. Reitz acknowledged he still adhered to this position in a deposition taken in March of 1968.

Insofar as the investigating committee could determine, the Personnel Board did not entertain any serious doubts

respecting Dr. Jones's professional competence. The behavior of Dr. Jones in defending the thesis seems to have been crucial only in the case of Dean Grinter, though it was perhaps a contributing factor in others' judgments. The factors most often acknowledged as a ground for the Board's action were the espousal by Dr. Jones of rebellion by students and faculty as the only practicable course open for bringing about institutional change and the implementation of his declared principle "by action and precept" and by the manipulation of students in the service of personal, ulterior ends.

Dr. Jones was promptly notified of the Board's intention to stand on its original decision. No reasons for the denial of tenure were given.5 There was no issue of late

4 Another faculty representative on the Personnel Board informed the Washington Office, in a prepublication letter dated June 2, 1970, that Dr. Jones's ". . . vita statement, which we all had before us, showed one of the lengthiest and most substantial lists of publications ever before the Personnel Board in the two years I served on that Board."

President O'Connell has informed the Association, in a statement received on November 27, 1970, that another faculty member on the Personnel Board (who voted against tenure for Dr. Jones) offers the opinion that ". . . Dr. Jones's responsibility was primarily in research and not in teaching. He therefore felt, and still feels, that in light of Dr. Jones's responsibility, his record of publication was in fact modest." 5 In Advisory Letter Number Thirteen (AAUP Bulletin,

40° AAUP BULLETIN



notice in the case since Dr. Jones was continued on the

faculty during the academic year 1967-68. At the end of that year he became a member of the medical faculty of another university.

President Reitz's Position

In his interview with members of the investigating committee, former President Reitz was emphatic that

political influence had no bearing on his consideration of the Dr. Jones case. Dr. Reitz did acknowledge that a factor weighing heavily with him was the relationship of Dr. Jones to the graduate student whose thesis he had defended and to a twin brother and a sister of the student. The graduate student later committed suicide while a mental patient in a University hospital.

In substantial part Dr. Reitz's knowledge of Dr. Jones's

relationship to the family came from the father of the three students, whom Dr. Reitz visited after the suicide. The father complained bitterly of what he believed to be the harmful influence Dr. Jones had exerted on his children after their arrival on the University campus. All three had become active participants in movements directed toward speeding racial integration in Florida

communities, and Dr. Jones had been an adviser of those involved in the movements. As the sons and daughter came increasingly under the influence of Dr. Jones, they became alienated from their parents. The marriage of one son to a black girl and of the daughter to the editor of the Crocodile Cross, an underground newspaper published in Gainesville, were mentioned as illustrative of their rebellion against their parents. Dr. Jones's involvement with the paper, regarded by some members of the

University community as an offensive publication, was indicated by the fact that friends wishing to support it were directed by an advertisement appearing in its pages to send financial contributions to Dr. Jones's wife. In answer to an inquiry of the investigating committee, former President Reitz suggested that these purposes were the promotion and direction of students in demonstrations and confrontations with authority as ends in themselves. Dr. Jones was said to be particularly effective in influenc-

ing students having psychological problems. Dr. Reitz inferred that Dr. Jones derived personal satisfaction from

exercising control over students rather than from advanc-

ing the social objectives he openly espoused. Notwith-

standing the importance of Dr. Jones's involvement with

the family referred to above, it was not discussed at any Personnel Board meeting. Dr. Reitz did not doubt, how-

ever, that the other members of the Board were aware of

this connection.6 Dr. Reitz conceded that delivery and publication of the

speech by Dr. Jones on the role of the faculty in student

rebellion were within Dr. Jones's rights as a citizen, but

"by his action and precept" in his position of trust and

responsibility with students he exceeded the boundaries

of permissible conduct.7 He acknowledged that his ad-

verse opinion of Dr. Jones's fitness for retention by the

University was so strong that he could not have recom-

mended tenure to the Regents, irrespective of the decision

reached by the Board.8 Since, however, he had announced

his resignation the previous February and prospective

departure from the University, and since he had not

sought to influence the decision of the Board, he was cer-

tain that each Board member had his own reasons for

voting as he did. The Board made no attempt to respond to the request of one of its faculty members to formulate

a statement of the grounds for the Board's rejection of the

recommendation for transmission to the College of

Medicine.

Appeal to the Committee on Academic Freedom and

Tenure and President O'ConnelVs Action Thereon

Dr. Jones appealed his case to the University Senate

Committee on Academic Freedom and Tenure. A panel of this body, a standing committee elected by the Univer-

sity Senate, was selected to hear the petition, and the

hearing commenced on April 16, 1968. A typed transcript of the proceedings was provided to the investigating com-

mittee.

Spring, 1964, p. 85) the Association offered guidance concerning the giving of reasons for denial of tenure and nonreappointment of probationary faculty members. A more detailed discussion of the matter is found in the report of Committee A entitled "Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments" (AAUP Bulletin, Spring, 1970, pp. 21-25), published for the information and comments of the membership prior to official action on the report. The faculty's "primary responsibility" in matters related to faculty status, including decisions on tenure and reappointment, and the role of the governing board or president in such decisions are set forth in the policy document Statement on Government of Colleges and Universities, offi- cially approved by the Annual Meeting in April, 1967. This Statement is discussed elsewhere in the present report.

« A faculty representative on the Board states that ". . . the

faculty members of the Personnel Board did not know anything about a protest by [the father of the students] with

regard to the influence of Jones on all of his children." Board members did refer to Dr. Jones's connection with the student who wrote the thesis, according to this Board member (from letter to the Washington Office, June 2, 1970).

7 In his prepublication letter to the Washington Office (July 2, 1970), Dr. Reitz suggested the addition of the following words to this sentence: "by his interfering with the freedom of action by students." Dr. Reitz thought that the addition of these words would help to "emphasize" his position.

President O'Connell, in his prepublication "Reply and Com- ments" on a preliminary draft of this report writes: "Dr. Reitz did object to the use by Dr. Jones of his position as a member of the University of Florida faculty 'as a means and device for the unnecessary and unreasonable influence on students who would otherwise on a perfectly reasonable and

logical basis as students operate in a fashion different from what they would have normally operated'" (the enclosed quotation is from Vol. I, Transcript of Hearing, Marshall B. Jones, Petitioner, page 29). President O'Connell also says: "The use by a professor of his superior intellectual maturity and personality to promulgate his personal objectives through his students certainly does not fit within the realm of such academic freedom. It was the existing and indicated threat of the exploitation of this undue influence which affected Dr. Reitz adversely and not the statement issued by Dr. Jones."

s In his prepublication "Reply and Comments," President O'Connell states that Dr. Reitz's firm opposition to retention and granting of tenure was not reached until after the Per- sonnel Board had held its hearings and reached its decision.

409 WINTER 1970



The Majority Report of the Committee, which sustained the denial of tenure, contained a recital of "Operating Principles." One of these, on substantive matters, defined the role of the Constitution of the Uni-

versity of Florida and its By-La ws in the following terms:

Under no circumstances should this constitution and these by-laws play a secondary role to anything except established and clearly applicable federal and /or state law. No principle of any organization, nor principle of individual philosophy of what is desirable, as distinguished from what is required by the constitution and by-laws, should be allowed to prevail.

The Majority Report acknowledged that, according to the governing principle promulgated by the American Association of University Professors, when the president of a university refuses to recommend tenure for a faculty member notwithstanding a favorable recommendation by the faculty member's own colleagues, the president's reasons should be of a "compelling" nature. After noting that "AAUP standards have been useful" but "are not

formally binding," the majority opined that the President was not obliged by the University's Constitution to accord

any weight to a college faculty's recommendation, and that in any event President Reitz had left no doubt in his

deposition that he had "compelling reasons" for his action.9

The Majority Report stated the issue in the case before it in these terms: "Was the decision of President J. Wayne Reitz not to recommend tenure for petitioner, Marshall B. Jones, violative of his academic freedom and/or his constitutional rights?" The Report excluded three issues from the case and explained as follows:

(1) The competence of petitioner to perform the academic and professional duties for which he was employed. The respondent conceded such competence.

(2) Whether a denial of tenure without a statement to the faculty member of proper reasons is a denial of academic freedom. An allegation that such a statement was necessary was made in the petition. The panel considers, however, that since reasons were given in President Reitz's deposition, the issue is not properly before the panel for determination.

(3) Alleged facts occurring after the date of President Reitz's decision not to recommend tenure. This date was June 26, 1967. As the petition was presented to the committee, both prior to and after the amendment to petitioner's prayer for relief, this was the ultimate date with which facts and law were concerned.

At the hearings before the panel, counsel for Dr. Jones presented as evidence a deposition of former President Reitz, a page of his handwritten notes entitled, "Report

9 In his prepublication "Reply and Comments," President O'Connell suggests that the following passage from the Ma- jority Report would clarify the President's position vis-d-vis a favorable recommendation from the faculty: "There is no justification for assuming that the Constitution of the Uni- versity of Florida places the President under an obligation to rest his decision not to recommend tenure on a different or more impressive basis when the faculty member has been recommended by his college. Here, the President's authority is independent of that of the college even though it is safe to assume that in making his decision, the recommendation of the college will be accorded serious consideration."

on Marshall Jones Case," and a copy of Dr. Jones's article in the Educational Forum, "The Role of the Faculty in Student Rebellion." The evidence for the University consisted in testimony by Dr. E. T. York, Provost of the

University's Institute of Food and Agricultural Sciences,

regarding Dr. Jones's membership in a group that had raised questions regarding a national security seminar held on the University campus; testimony of Vice Presi- dent Conner as to his reasons for opposing tenure for Dr. Jones and as to the matters that had been considered by the University Personnel Board; and a deposition of Dr.

Jones taken on February 24, 1968. The majority analyzed the evidence presented at the

hearing and drew therefrom eight reasons for its conclusion that Dr. Jones had failed to meet the burden of proof resting on him to establish the material allegations of his

petition. According to this analysis:

1. President Reitz's testimony, introduced by counsel for Dr. Jones, showed that he had used appropriate criteria for determining whether tenure should be recommended for Dr. Jones: (a) that, as required by the

policy of the Board of Regents and the Constitution of the University, the faculty member must possess "in addition to academic and professional competence, scholarly discretion, good citizenship, academic re-

sponsibility, appropriate restraint and good judgment"; and (b) that the President must be satisfied "that the continued employment of the faculty member would serve the best interests of the Institution and University system of the State of Florida."

2. President Reitz expressly denied that his action was based on "statements made by petitioner [Jones] on

political or social issues, . . . political influence from the outside, . . . petitioner's views or activities in the civil rights area or ... his membership in or connection with any political or social organization as such." The statement of his reasons for not recommending tenure for Dr. Jones before the Executive Committee of the College of Medicine supports this denial, the

majority concluded. The Majority Report quotes from the statement by Dr. Reitz to the medical Executive Committee wherein he attempted to explain the basis for the recommendation of the Personnel Board, as follows:

Dr. Jones has publicly urged in speech and print a principle of action which is contrary to and potentially destructive of the principles on which universities must be organized. Dr. Jones's expressed principle is that the only way in which significant changes can be achieved inside or outside the university is by rebellion and that democratic and other orderly processes are merely means of ratifying the changes thus forced. He has espoused this principle in print, speech, counsel and precept. He has implemented his philosophy by a series of actions and interactions with students. His speech and action are apparently devoid of suggestions of a constructive nature. As organizations committed to the processes and procedures of reason, universities cannot consistently or safely condone such fomenting of strife as a standard of change.

The Majority Report added after the quotation that

410 AAUP BULLETIN



"President Reitz stated that the word 'rebellion' was used in the sense of the employment of any device, presumably within the law, to confront or resist author-

ity." The Report then described the President's statements as not condemning "mere beliefs, or expressions thereof," but as emphasizing "the implementing of such beliefs by actions."

3. The University Personnel Board had on two occasions recommended that the President not recommend tenure for Dr. Jones.

4. According to Dr. Reitz's deposition, Dr. Jones "had a

strong tendency to get under his influence students who were highly motivated and then to use them to accom-

plish his personal goals . . . [viz.,] to seek confrontation of authority wherever that authority might exist as an end in itself and without necessary regard to any altruistic or idealistic motives." Particular reference was made to "the very strong conviction of a parent of three students [that] his children were diverted from the normal and appropriate achievement of their social

objectives as a result of the influence of petitioner." 5. A "minor factor" in President Reitz's decision was Dr.

Jones's use of the disapproval by a reviewing committee of a thesis written by a student under Dr. Jones's guidance as an opportunity to create a confrontation with the dean of the Graduate School.

6. Although Dr. Reitz gave Dr. Jones "the benefit of the doubt that his activities would be within the law," "since petitioner advocated and practiced rebellion he, President Reitz, did not know where petitioner would

stop." 7. Dr. Jones's support of a newspaper "that was deroga-

tory and impertinent with respect to the University and . . \ contained a great deal of salacious and vulgar material" was considered by President Reitz as "com-

pletely poor taste" for anyone in a learned profession. 8. Dr. Jones would get into activities to "create disruption

and impinge, in effect, upon the freedom of others to

act," as evidenced, for example, by his opposition to

the actions of the faculty discipline committee.

Upon conclusion of its deliberations, the panel issued a Majority Report, signed by three members, arid a Minor-

ity Report, signed by two. These reports were forwarded

to President O'Connell early in July, 1968. The panel

majority concluded that Dr. Jones had failed to prove the

allegations of his petition "by a preponderance of the

evidence" and therefore upheld the University's decision

to deny tenure. The minority members wrote that in their

opinion Dr. Jones had made a sufficient showing "to

sustain his charge that a recommendation for tenure was

denied for reasons and through processes that were viola-

tive of accepted canons of academic freedom and good academic practice," and they concluded that "tenure

should have been recommended to the Board of Regents for Professor Jones in June, 1967."

The Minority Report agreed with the Majority Report in recognizing that the burden of proof rested on Dr.

Jones to establish his claim that tenure had been withheld

for reasons violative of academic freedom, but the minor-

ity was otherwise in disagreement with the majority. The

Minority Report quoted from the report of another hear-

ing panel of the University's Senate Committee on

Academic Freedom and Tenure in observing that an

aggrieved faculty member need only show that activities

constituting the exercise of protected academic freedom

"were influential factors in the decision to terminate his

employment." Without questioning the sufficiency of the

evidence or weighing that submitted by either party, the

minority concluded that the University administration

relied on three grounds for the denial of tenure to Dr.

Jones: (1) his espousal of rebellion; (2) his influence on

students; and (3) cumulative disruptive actions. The

Minority Report dealt with each of these in turn as fol-

lows:

1. Dr. Reitz's deposition, as well as his statement to the

Executive Council of the College of Medicine, demon-

strated to the minority that the primary reason for his

decision in the case of Dr. Jones was his espousal of

rebellion as a way of bringing about social change. Note was made of Dr. Reitz's emphasis on the expression by Dr. Jones of his position by words, print, and

actions that confrontation of authority is a necessary means of social change.10 Advocacy of rebellion falls

within the ambit of a constitutionally protected exer-

cise of academic freedom, in the minority's opinion, and behavior implementing the advocacy but violating no law lies within his rights.

2. The minority thought the second ground could be taken

seriously only in a setting where an institution and its

staff stand in loco parentis vis-a-vis its students. Pro-

tection of students in a modern university against un-

orthodox ideas and approaches seemed, to the minority, a less than compelling reason for denying tenure to Dr.

Jones.

3. Accepting the truth of the third kind of charge, viz.,

that Dr. Jones had been disruptive, had frustrated the

President's efforts to serve the best interests of the

University, and had indeed been obnoxious to many

persons in the University community, the minority

thought it incompatible with an acceptable view of

academic freedom to eliminate such a person from the

University community for these reasons.

In its conclusion the minority suggested that the best

interests of a university cannot be served by "stifling free

expression in order to avoid controversy." "Indeed, the

continued employment of such a person [as one holding the views of Professor Jones and engaging in activities

such as his], rather than the termination of his employ-

io in the present passage, the investigating committee is

summarizing the findings as set forth in the Minority Report. In his prepublication reply to a draft of the committee's re-

port, President O'Connell urges that this report include the

following statement: "Dr. Reitz reiterated many times in conversation before the Personnel Board, Executive Commit- tee of the College of Medicine, in sworn testimony, and to the investigating committee, the primary reason for his refusal to recommend tenure be granted to Dr. Jones was because of Dr. Jones's actions and interactions with students."

411 WINTER 1970



ment, may, in a broad sense, serve the best interests of the university."

President O'Connell accepted the report and conclusion of the majority as correct in a statement dated July 15, 1968, which was sent to all interested parties. The statement recited that in addition to reading all the pleadings, motions, and briefs submitted, and all the evidence ad- mitted in the course of the hearing, as well as the majority and minority reports, the President had heard arguments by Dr. Jones's counsel made at the litter's request. The President noted that "counsel did not contend that there had been any procedural errors in the proceedings leading to the refusal of the University to recommend tenure for

petitioner in June 1967." The President advised Dr. Jones's counsel of a right of appeal to the Board of

Regents. Dr. Jones informed the General Secretary of the Association that although his counsel did not think the

Regents had or ought to have the power to grant tenure without approval of the proper administrative officers, he was inviting the Board of Regents by letter to overrule President O'Connell if the Board thought it had power to do so. The investigating committee did not learn what

response, if any, was made by the Board to this communication.

Was Dr. Jones Denied Academic Freedom?

The foregoing recital of the facts relevant to the determination of the issues raised by Dr. Jones's request for an investigation by the Association requires a careful consideration of his charge, v/z., that denial of tenure by the University of Florida was predicated on his exercise of protected academic freedom.

His professional competence as a scholar was not put in issue. The head of his department, the Dean of the College of Medicine, and his colleagues in the college had satisfied themselves on this aspect of his qualifications, and they were in the best position to judge of this matter. There was no serious attempt by any spokesman of the

University to question Dr. Jones's professional competence as a psychologist, although one member of the Personnel Board, a faculty member from the College of Agriculture, told the investigating committee that he had reservations in this regard.

No questions were raised regarding Dr. Jones's classroom teaching, and the investigating committee found in the record made available to it evidence of remarkable success in the classroom. The only serious challenge to his capacity as a teacher was made by Dean L. E. Grinter of the Graduate School, relating to Dr. Jones's defense of a master's thesis he had supervised. In Dean Grinter's view the thesis was unacceptable, and the persistence of Dr. Jones in defending it was evidence of a susceptibility to emotional involvement that impaired his objectivity as a teacher. The thesis was in fact the basis for an article submitted by the student and Dr. Jones to the editors of the American Journal of Orthopsychiatry and subsequently published in that journal. Dean Grinter and Dr. Jones are in substantial disagreement as to the differences between the thesis as originally submitted by the student and the published article, but Dean Grinter

has appropriately pointed out to the investigating com-

mittee that the publication of the article after the Uni-

versiy's decision on the tenure recommendation for Dr.

Jones would have no relevance in a review of its decision.

The conclusion of the investigating committee is that

Dr. Jones's defense of the thesis affords no real support for a rejection by the University of the recommendations of his superiors and colleagues in the College of Medicine

that he be given tenure. After summarizing the reasons for sustaining President

Reitz's decision not to recommend tenure as disclosed

by the evidence, the Majority Report discussed the stand-

ards required of a faculty member by the Constitution

of the University of Florida. The Report acknowledged that a faculty member's activities may not be the basis

for an "adverse judgment" if they "are a proper exercise

of his constitutionally-protected academic freedom." The

Report continued, "It must be recognized however that

good citizenship, restraint and good judgment must be

considered as integral parts of this freedom of a faculty member." The adverse judgment of the President regard-

ing these matters was held to be justified by his good faith and reasonable conviction and by the two actions of

the Personnel Board "that petitioner actively and without

adequate basis confronted and resisted University admin-

istrative authority as well as encouraged others to do so, that he used students to his own advantage without proper regard for their welfare, that he exercised poor judgment and lack of restraint by unjustifiably interfering with a law enforcement officer in the performance of his legal duties."

Dr. Jones was identified as the charismatic leader of student activists who diverted them from the pursuit of their academic objectives and "seduced them" to follow his example and precept in picketing, confrontations of

authority, and other kinds of disruptive activities. It was

reported to the investigating committee that he sometimes manipulated the students for ulterior purposes -

i.e., for gratification of his own need for and pleasure in

dominating and controlling people - and that he coun- selled breaches of the peace and disrespect for the law. The investigating committee has been unable to find any persuasive support for these assertions in the record made available to it. Rather, his involvement with students, viewed in terms of the evidence examined, appeared to it to have been constructive for the students and of substantial help to the University at a time when radical activities were astir on most university campuses. The evidence available to the committee suggests that Dr. Jones apparently sought to minimize conflicts between students and law enforcement officers and student involve- ments that threatened interference with their academic obligations.

The investigating committee neither read nor heard credible evidence in support of a charge that Dr. Jones manipulated or influenced students in an unethical way. Great teachers do influence students and indeed inspire them to think and act in ways that depart, often drasti- cally, from the conventional patterns of thought and action they brought to college with them. One of the

412 AAUP BULLETIN



risks of allowing a university to foster academic freedom is that teachers and students alike may advocate and act on new and controversial views of all manner of things. Although President Reitz insisted that he had no objection to Dr. Jones's espousing his own social and political views, he did appear to be unwilling to defend Dr. Jones's freedom to influence students to accept such views when students' parents objected. If the hope for tenure of any teacher can be put in jeopardy because of his espousal to students of social views that differ from those of students'

parents or those of his colleagues or those of the president and administrative officers of a university, academic freedom will have suffered a profound loss. Under such a limitation the university cannot serve as the forum for the debate of disputed ideas, nor the laboratory for the

discovery and study of new findings that are unacceptable to whoever has the authority to approve and reject ideas and discoveries.

We are of course not here concerned with a teacher's

improper use of the classroom to propagate social or

political views irrelevant to the subject he is assigned to teach. The students coming under the influence of Dr. Jones included, it appears, few who were in his classes in the College of Medicine, but they were all of college age and presumably possessed of an education sufficient to prepare them for university study.

The investigating committee found no evidence to support the charge that Dr. Jones's motive was to manipulate and dominate students, rather than to gain their

support to advance certain social causes. Insofar as the

University concluded that Dr. Jones abused his position by exploiting students for his own purposes and relied

on such a conclusion in acting on the recommendation for tenure, the committee submits that the conclusion is not supported.

The investigating committee was unable to determine whether Dr. Jones's speech and its published version con-

stituted the primary basis for rejection of the recommen-

dation for tenure. Shortly after publication, it appeared to be viewed by Vice President Conner as sufficient ground in itself for denial of tenure. Later, the implementation of the unacceptable ideas expressed in the speech and

article "by precept and example" was added and increas-

ingly emphasized to support the action on the tenure

recommendation. In any event, the speech and article

were clearly viewed as substantial evidence, if not in it-

self conclusive, that the recommendation of tenure for

Dr. Jones should not be accepted. The article thus de-

serves attention in this report. The 1940 Statement of Principles on Academic Free-

dom and Tenure and the Committee A Statement on Ex-

tramural Utterances both declare the faculty member's

right to speak or write as a citizen free from institutional

censorship or discipline. The latter, as does the 1940

Statement, recognizes "the faculty member's special obli-

gation arising from his position in the community; to be

accurate, to exercise appropriate restraint, to show respect for the opinions of others, and to make every effort to

indicate that he is not an institutional spokesman." The

latter Statement also emphasizes that "extramural utter-

ances rarely bear upon the faculty member'* fitness for

his position." The investigating committee finds Vice

President Conner's Statement difficult to reconcile With

the position as set forth in the 1940 Statement and the

Committee A Statement, and incompatible with the view

that a nontenured faculty member has a right to academic

freedom and the full panoply of guaranties of the First

Amendment of the Constitution.11 The publications of a probationary faculty member are

judged by his colleagues for their contribution to knowl-

edge, but it would be an unacceptable development in the

history of academic freedom and tenure in this country if

the social or political beliefs expressed in a publication in a scholarly or professional journal should be offered

by colleagues as a basis for denying tenure, or even as a

significant factor in an adverse decision on tenure. Dr.

Jones's article recounts events and trends that he observed

as a participant in what he called the "Gainesville move-

ment." No misstatement or distortion of fact was sug-

gested by any of the critics of the article. There is nothing in the article that can be viewed as derogatory of the

University of Florida or its administration. Although

mildly polemical, its last page includes this prudential

paragraph:

At the same time, it is an individual's right to determine for himself what It is that the occasion require* of hfcn. It sometimes hippeot in movement wot* that fikr leaderthip "psyches" peopto into demonstrations they tanrt not fore- seen or coittidtt*d. It ill becomes any movement founded on moral regard to exploit emotionalism, whatever the needs of the movement may be, a man has a right to know what he's getting into and to evaluate for himself the

penalties he may have to pay.12

The article is thus essentially a reflective and analytical discussion of the ways in which faculty may work with

students in bringing about institutional and social change. It is a timely and relevant topic for a university professor to talk and write about. Any proponent of change in an

institution or in society generally is likely to encounter

resistance, and the iconoclast who confers his blessing on

unconventional means for achieving unwelcome reforms

is sure to arouse criticism. But when Dr. Jones encour-

aged students, as he acknowledged in the article that he

ii Vice President Conner, in a prepublication letter to the

Washington Office dated July 30, 1970, took the position that Dr. Jones's utterances were neither extramural nor those of a citizen speaking on a matter of public interest. The publication of the article was clearly extramural, but in any event both the article and the speech were exercises of academic freedom and of freedoms guaranteed by the First Amendment of the Constitution. The Committee A Statement on Extra- mural Utterances is not limited in scope to statements on matters of public interest, but Dr. Jones's speech and article would seem to qualify as such a statement.

12 In his prepublication comments, President oconnen states in reference to the paragraph quoted from the article: "The quoted paragraph is directly contrary to statements made

by Dr. Jones before student groups. Dr. Jones has on several occasions stated that students do not need to know the reasons for their protest if they rebel for the sake of rebellion."

413 WINTER 1970



did, to bypass prescribed channels and to rebel by open and public resistance to authority, including academic authority, the critics faulted Dr. Jones for approving and counseling acts that are incompatible with the continua- tion of the university. Those who approve established structures and procedures are prone to view proposals for significant change as undermining the institution that would be affected by the change. Although Dr. Jones insisted that he was not talking about revolution but rebellion, which, according to his definition, seeks change within an institutional order rather than a take-over or supplanting of existing authority, his critics accused him of advocating the destruction of the university.

It may be conceded that Dr. Jones expressed approval of a role for faculty and a role for students in the uni-

versity that many members of the university community find repugnant to their own views of what these roles should be. But the events of the last decade surely sug- gest a reexamination of conventional assumptions about the allocation of decision-making power and procedures in the university. If the inadequacies of existing structures and procedures in institutions of: higher education are outT side the scope of protected discussion even in scholarly journals, it can hardly be supposed that demands for

change or change itself will be avoided thereby. Rather the process will lose the benefit of the open and fair examination of alternatives that is a principal justification for tolerating dissent and safeguarding freedom of expression in our society.

It must be granted that physical disruption of the university is a substantive evil that its administration may act to prevent; to that end, the university may of course for- bid direct incitement of illegal acts under circumstances where the individual has reason to know of their prob- able consequences. Nothing came to the attention of the investigating committee, however, remotely connecting Dr. Jones's speech or article with such an event. Rather, the only danger immediately threatening to the Univer- sity as an institution committed to academic freedom was raised by the decision to deny Dr. Jones tenure; to the extent that the University community may reasonably have understood that Dr. Jones's speech and article were influential considerations in the decision to deny him tenure, the decision itself posed the more authentic threat to the University.

Dr. Reitz recognized some of the difficulty of sustaining the view that Dr. Jones's pronouncements on faculty and student activism constituted any significant threat to the University. In his deposition and in his conversations with the investigating committee Dr. Reitz said that he could not see how far Dr. Jones would go, and he emphasized that, in his judgment, Dr. Jones went beyond the abstract discussion of the faculty role and implemented his views by precept and example. If a teacher's speech or writings are to be judged by the possible implications read into them by the administration, his freedom to speak and write is indeed subject to a chilling effect that varies with the predisposition of the judge. What a teacher says may be illustrated and illuminated by what

he does. As indicated in earlier paragraphs, however, the

investigating committee has found no instance of conduct that could be said to pose any danger to the University.

The investigating committee encountered a view, ex-

pressed most explicitly by Vice President Conner but

apparently shared by other members of the administrative and teaching staffs at the University of Florida, that academic freedom belongs only to members of the faculty who already have tenure.13 Dr. Jones was thus thought to be vulnerable because he sought to exercise a right before he had earned it. A related misconception was that if the reasons for withholding tenure are not required to be disclosed to a professor or to the academic community, it follows that they cannot be scrutinized or questioned. Such views are not compatible with the principles that the Association has accepted and espoused. Academic freedom is an essential condition for any university teacher. If only those who have acquired tenure are protected when they express unconventional or dissenting views, the university community and society would be deprived of the inestimable value that comes from the uninhibited

advocacy of innovative ideas and proposals by those who are young and who approach old problems and established procedures without the handicap of familiarity and recon- ciliation with the status quo.

There are differences in procedural rights in the case of termination of a teacher with tenure and in the case of termination by way of nonrenewal of a probationary appointment. The tenured teacher is entitled under the 1940 Statement of Principles on Academic Freedom and Tenure to be informed of the charges and to be accorded a hearing that meets the elemental requirements of due process. The issue of whether a denial of academic freedom has occurred is likely to surface in such a proceeding and to be thoroughly examined. The same right is accorded also to the teacher without tenure if termination previous to the expiration of his term is sought. The right of a teacher without tenure to timely notice of nonreappointment has been recognized in The Standards for Notice of Nonreappointment, but his right to a statement of reasons for denial of tenure and to a hearing on whether tenure should be granted has been a matter of discussion and development. In any event, it has been generally recognized that the burden of proof in the case of nonrenewal rests on the faculty member challenging the sufficiency of reasons for denial of tenure.

When a nontenured faculty member believes that he has been denied tenure because of his exercise of rights that are guaranteed all university teachers by the principles of academic freedom, however, he is entitled to ask the Association to investigate the basis for the denial. In such a case it is the practice of the Association to require the complaining faculty member to exhaust all the remedies available to him within the institution, and Dr. Jones complied with this request. In its examination of the denial of tenure to a complaining faculty member who has exhausted his intramural remedies, the Associa- tion and its committees do not arrogate to themselves

13 But see footnote 3, supra.

414 AAUP BULLETIN



the prerogative of a supreme or a superior judge of the

qualifications required to be met by a candidate for tenure in any institution. One concern of the Association in such a case is to ascertain that the tenure decision has been made in conformity with the pertinent paragraph of the Statement on Government of Colleges and Univer- sities, jointly developed by the American Council on

Education, the Association of Governing Boards of Uni- versities and Colleges, and the American Association of

University Professors. This paragraph declares the pri- macy of the responsibility of the faculty in the making of the tenure decisions and the obligation of the governing board and the president to "concur with the faculty judgment except in rare instances and for compelling reasons which should be stated in detail."

In this case the faculty colleagues of Dr. Jones who had served with him in his department and college and who knew him and his work best were unanimous in their

support of the recommendation for tenure. The State- ment on Government of Colleges and Universities recognizes the legitimacy of a review of such a recommendation

by an experienced faculty personnel committee having a broader charge and perspective than the faculty members of the candidate's particular field. The investigating committee cannot, however, accept the University's Per-

sonnel Board that rejected the recommendation for Dr.

Jones as constituting the kind of experienced faculty

personnel committee contemplated by the Statement on

Government. Even the half of its members drawn from the faculty were selected by the President, apparently without consultation with the University Senate or any constituted body selected by the faculty. There seemed to be no instance within anyone's memory when the Per-

sonnel Board had been at odds with the President.14 Two

of the four faculty members nevertheless voted at the

second and last consideration by the Board of the Dr.

Jones case to sustain the recommendation for tenure.

According to one of the faculty members of the Board, the President indicated after the vote that he would not

have forwarded a favorable recommendation for tenure

to the Board of Regents in any event. The hearing before the panel of the University Senate's

Committee on Academic Freedom and Tenure was in-

tended to test the sufficiency of the reasons for the Presi-

dent's disregard of the tenure recommendation for Dr.

Jones. This panel included five faculty members selected

by a process under Senate control, and the judgment of

such a body on the issue presented must be accorded high

respect. The investigating committee finds itself in agreement with the opinion of the two minority members of

the panel, however, and unable to accept the premises or the conclusion of the three majority members. The

majority disavowed any obligation to apply standards

endorsed by this Association and other learned societies

and limited its inquiry to that of determining if "a sub-

stantial basis for refusing to recommend tenure" was

established by the evidence presented at the hearing. In-

deed, the majority pointed out that the Constitution of

the University of Florida by which the panel was bound

gave the President authority independent of that of the

college and that he was thus under no obligation to rest

his decision against tenure "on a different or more im-

pressive basis when the faculty member has been recom-

mended by his college." Insofar as "compelling reasons"

are required to justify the action of the President, the

majority noted that "it seems that there can be no doubt

that President Reitz considered the reasons compelling." The majority did not, however, attempt to determine for

itself or declare whether there were in fact compelling reasons for disregarding the recommendation of tenure

for Dr. Jones. Rather the report rested with a statement

finding

. good faith and reasonable conviction on the part of President Reitz that petitioner actively and without adequate basis confronted and resisted University administrative authority as well as encouraged others to do so, that he used students to his own advantage without proper regard for their welfare, that he exercised poor judgment and lack of restraint by unjustifiably interfering with a law enforcement officer in the performance of his legal duties, and that his conduct had been of such an unacceptable nature that the University Personnel Board had recommended that tenure not be granted.

The Majority Report then took note of an allegation of Dr. Jones's petition that "if the decision of President

Reitz was based exclusively on the reasons expressed in

the Conner memorandum petitioner's academic and con-

stitutional rights were violated." Since the decision was

said to be based "on substantial reasons in addition to

those expressed in the memorandum," the majority

opined that it was "unnecessary as a prerequisite to the

entry of a judgment for respondent" to decide the point raised by the allegation of the petition. On the assump-

tion, however, "that the memorandum contained the ex-

clusive basis for not recommending tenure," the majority stated that Dr. Jones could nevertheless not prevail. After

reference to a number of reported court decisions, the

Majority Report concluded that they

... do not support satisfactorily the allegation that petitioner was exercising his academic freedom and/or his constitutional rights when he advocated in writing and

speech to faculty members and students that rebellion is the only method of bringing about significant change in a

university. Without questioning the sincerity of President Reitz's

conviction that there were compelling reasons in his view

for turning down the recommendation on Dr. Jones, the

investigating committee finds no compelling reason in the

list of eight recited by the Majority Report. The com-

mittee agrees with the Minority Report in finding a re-

liance by the President on words that were spoken and

14 A member of the Personnel Board informed the Wash- ington Office that the Board ". . . did not then (1967) nor does it now have any criteria for denying tenure. . . . Further- more, it does not have any rules of procedure, and most department chairmen and deans do not know that they may possibly ask for a hearing before the Board to protest any denials they consider arbitrary. Indeed, the granting of such hearings, when occasionally requested, is a matter of whim and largesse, not a matter of right for the requestor." (Letter dated June 2, 1970.)

415 WINTER 1970



written by Dr. Jones in the exercise of his constitutional

rights and disagrees categorically with the conclusion of the Majority Report that Dr. Jones's speech and writing did not constitute an exercise of academic freedom.

The University's "Reply and Comments" to the preliminary draft of the investigating committee's report made the following points: that the record before the

University Senate Committee on Academic Freedom and Tenure did not contain all of the evidence available in

support of Dr. Reitz's position; that further evidence was

unnecessary because of the failure of Dr. Jones to carry the burden of proof resting on him; and that statements of Dr. Reitz before the Personnel Board and the Execu- tive Committee of the College of Medicine made clear that his decision against recommending tenure for Dr. Jones was based on his (i.e., Dr. Jones's) "interactions with students."

As indicated above, the investigating committee finds, as did the minority of the University Senate's committee, that the evidence submitted by Dr. Jones established at least a prima facie case that considerations violative of his academic freedom were influential factors in the decision of President Reitz not to sustain the unanimous recommendation of his departmental colleagues, chairman, and dean that Dr. Jones be given tenure. The interviews of the investigating committee with Dr. Reitz and the members of the Personnel Board confirmed the significance of Dr. Jones's utterances and his civil rights activities in the University's final disposition of the case.

The University's "Reply and Comments" includes the following description of Dr. Jones's "interactions":

. . . leading large groups of students in a course of conduct and in actions which call for branding the gathering an unlawful assembly; ... [a reference] publicly in a speech before students and other members of the public to "that fucking administration"; . . . [active assistance] in recruit ing students into membership in SDS; . . . [encouraging] students to look for opportunities to turn campus issues into freedom of speech issues in order to get the support of naive faculty and students without bases for doing so; . . . [encouraging] students to involve other students in protest and . . . further . . . [advising] them that it was not necessary for the students to know why they were protesting. . . .

Dr. Jones, in a subsequent communication to the investigating committee dated September 21, 1970, has denied that he engaged in most of these activities attributed to him in the foregoing quotation, and most of them were not mentioned in Dr. Reitz's deposition introduced in evidence at the hearing before the University Senate's Committee. In addition, Dr. Reitz did not mention such charges in his interview with the investigating committee, except in generalized references to Dr. Jones's "manipulation" of students for his own ends or for the end of exploiting confrontation for its own sake; nor did members of the Personnel Board refer to these charges in interviews with the committee. The Majority Report does not take cognizance of them, except in generalized references made on pages 410-411 supra. In that light it seems unnecessary to determine whether all of the activities listed in the quotation, if engaged in by Dr. Jones,

would be protected as exercises of academic freedom. If such activities were the critical factor in the judgment of Dr. Reitz and the Personnel Board, respect for the role of the faculty, the departmental chairman, and the dean of the college who supported the tenure recommendation and for minimum standards of due process to Dr. Jones would have dictated a disclosure to them and him that

they were so viewed. It is difficult to conceive that had there been such a disclosure there would not have been at least a sharper focus on these charges and a heightened awareness of both the activities and their significance on

the part of the members of the Personnel Board and the

University Senate's Committee. In any event, Dr. Reitz did not dissociate the statements

made by Dr. Jones in his speech and his article from his

implementation of them by precept and example or the

potentialities of future implementation posed by the statements. Insofar as the former president and members of the Personnel Board considered Dr. Jones's statements in the speech and article as a basis for the conclusion that he would be an undesirable faculty member and should therefore be denied tenure, it is clear that Dr. Jones was the victim of a violation of substantive academic freedom and First Amendment rights. Without undertaking to determine whether the activities attributed to Dr. Jones in the list supplied by the University on August 7, 1970, occurred or could be explained by adding the context, the

investigating committee does not find in the list ground for revising its finding that Dr. Reitz and the Personnel Board did rely in a substantial and material degree on Dr. Jones's advocacy of a general political theory. That

advocacy neither included any incitement of particular action nor stated any intention by the speaker personally to violate any valid university regulation.

Conditions of Academic Freedom at the University of Florida

In the original visit to the campus, the investigating committee encountered a diversity of views among members of the faculty it interviewed at the University of Florida campus regarding the prevalence of academic freedom in the University community. The diversity is reflected in the voting by faculty members of the Per- sonnel Board and the hearing panel of the University Senate's Committee on Academic Freedom in the proceedings discussed in this report. Indeed, it appears that President Reitz's rejection of the recommendation for tenure would have been approved by a majority of the

faculty members in some of the colleges of the Univer-

sity. Faculty members from other areas expressed dismay at what they perceived to be a continual reinforcement of a pattern of coerced conformity on the Florida campus. The Jones case was thus regarded as holding symbolic significance by members of the faculty distressed by the administration's attitude and actions toward activist fac-

ulty members. Those holding unconventional views and

particularly those proposing radical social and political changes are of course more sensitive to a possible climate of repression than are those who accept the status quo. The Association is in any event committed to the view

416 AAUP BULLETIN



that academic freedom must be guaranteed to faculty : members who express unpopular and unorthodox opinions ; and advocate radical reforms. If, as Mr. Justice Jackson observed, such fundamental rights as those of free speech and free press are placed beyond the reach of both

majorities and officials (West Virginia Board of Educa- tion v. Barnette, 319 U.S. 624, 638 (1943)), so academic freedom for a university professor cannot depend on the

conformity of his opinions to an orthodoxy, whether prescribed by administration or even a majority of his col-

leagues. When the investigating committee made its visit in May

of 1969, officers of the University of Florida chapter of the American Association of University Professors were

generally favorable in their appraisal of President O'Con- nell. They were hopeful for improvement in the role of the faculty in the governance of the University. The President had sought from the faculty suggestions as to structural and other changes that would improve the op- erations, morale, and academic quality of the University. Pursuant to this manifestation of presidential concern for

faculty opinion, the Executive Committee of the local

chapter of the Association prepared an extended State- ment of Recommendations for consideration by the Presi- dent. The statement identified "the inadequacy of present arrangements for the conferring of tenure" as one of the

major problems requiring attention. Specific recom-

mendations for change included the recognition of the

right of tenured faculty members of a department to

initiate a recommendation for tenure as well as to vote

on the chairman's recommendation; the election of an

all-faculty review board on tenure cases; and an obligation on the President to state in full his reasons in writing for

overruling any departmental recommendation for tenure.

On January 12, 1970, the Florida Board of Regents

adopted a revision of tenure policies for the State Univer-

sity System. There had been consultation between

administrations and faculties of the several component institutions within the system, and the Florida State Con-

ference of the Association, by a resolution dated February

17, 1970, recognized that many of the changes resulted in

a strengthening of the tenure system "along lines con-

sonant with AAUP norms." The Conference went on

record, however, as opposed to certain changes introduced

by the Council of Presidents without faculty consultation.

Moreover, it is noted that the particular recommendations of the Executive Committee of the University of Florida

chapter referred to above are not embodied in the

regental revision. If the proposed changes are accepted and implemented,

they would manifestly be steps in the right direction.

Establishment of these forms and steps in the procedure would not, however, deal satisfactorily with the kind of

problem presented by the Dr. Jones case so long as the

University's Constitution is interpreted to allow the

President to act independently and in disregard of faculty recommendations. The Constitution's catalogue of cri-

teria for awarding tenure vouchsafes to the President a

wide and, as interpreted in the case of Dr. Jones, a prac-

tically unconfined discretion to reject a recommendation

for tenure. The scope of the President's discretion is sug-

gested by the following question on the form provided by the Office for Academic Affairs of the State University

System of Florida for supplying information in support of

a request for confirmation of tenure: "Is the president of

the university satisfied as to the character of the nomi-

nee?" As this report states, the investigating committee

finds that the presidential discretion was exercised to deny Dr. Jones tenure because the latter made statements sup-

portive of student activism and because he engaged in

activities supportive of unwelcome social change.15 Such

statements and activities brought him in disfavor with

many members of the University community, including President Reitz. As long as the President retains the sub-

stantially nonreviewable prerogative of rejecting faculty recommendations for tenure on grounds like those relied

on in the Dr. Jones case, it cannot be said that conditions

at the University of Florida are conducive to the protection of academic freedom for nontenured faculty.

The investigating committee was impressed by the

genuineness of concern of President O'Connell for fac-

ulty morale, his recognition of the necessity of academic

freedom as a condition for the fulfillment by a university of its role in a free society, and his respect for the safe-

guards of individual rights afforded by due process. It

is thus cause for concern to the committee that late in

1969 the University summarily terminated the appointments of three faculty members, LeRoy L. Lamborn,

Assistant Professor of Law, Evan Suits, Interim Instructor

in the Department of Psychology, and Jerome Miller,

Instructor in Architecture, for their refusal to sign a

loyalty oath. Professor Lamborn was at the time of his

dismissal a party to pending litigation, of which Mr. Suits

likewise became a party, challenging the constitutionality

of the oath requirement. Upon being informed of the

dismissals, the Association immediately expressed its deep

concern to President O'Connell because of the significant

departure from principles of due process that such sum-

mary action represented, and strongly urged that the three

faculty members be reinstated and that full due process, substantive and procedural, be accorded them. The As-

sociation also urged that, as an integral part of due

process, the University, through appropriate stipulation or otherwise, take no action pendente lite prejudicial or

injurious to them. Concurrently, the Association of

American Law Schools similarly indicated its serious con-

cern, stating that its President and Chairman of its Com-

mittee on Academic Freedom and Tenure believed that it

should associate itself with the message sent by this

Association. President O'Connell responded that the

pending litigation "in no way affects enforcement of the

questioned statute during the pendency of the litigation

unless its enforcement is restrained," and that it has al-

is Dr. Reitz, in a prepublication letter to the Washington Office, states that this sentence would be more accurate if it

read "As this report states, the investigating committee finds that the presidential discretion was exercised to deny Dr. Jones tenure because he influenced or directed students into courses of action contrary to their nature and the exercise of

their freedoms."

417 WINTER 1970



ways been his view that a citizen has a right to attack any law applicable to him, but he also has the duty to obey that law even while contesting it.16

The President has stressed in discussions of the dismissal of those who refused to sign the loyalty oath that in his opinion there was no alternative under the applicable state legislation.17 The Association does not agree that state legislation, or any administrative action taken pursuant to such legislation, can authorize summary or automatic discharge of a faculty member without afford- ing him due process. Whether or not there were other options available to the President in the circumstances presented, loyalty and disclaimer oath requirements applicable to the University of Florida and immediate termination of noncomplying faculty members pursuant thereto are continuing conditions at the University wholly unconducive to the protection of academic freedom.

Conclusions

The investigating committee finds and concludes that: 1. Dr. Marshall Jones was denied tenure by the Univer-

sity of Florida contrary to recommendations made by his departmental chairman and the dean of his college. Although these recommendations were also supported by his colleagues, apparently unanimously, in the department and college, they were not accepted by the President of the University for reasons significantly related to statements made and activities engaged in by Dr. Jones.

2. Statements and activities of Dr. Jones that were the basis of the President's rejection of the recommendation for tenure fell within the ambit of academic freedom protected by the principles of academic freedom which this Association is committed to support.

3. Conditions at the University of Florida are not conducive to the protection of academic freedom for nontenured faculty members nor, as indicated by recent developments, especially in regard to the loyalty oath, for faculty members generally.

Frank R. Kennedy (Law), University of Michigan; Chairman

Kendall Cochran (Economics), North Texas State University

Sheldon Schiff (Psychiatry), University of Chicago Investigating Committee

Committee A on Academic Freedom and Tenure has by vote authorized publication of this report in the AAUP Bulletin:

William W. Van Alstyne (Law), Duke University, Chairman

Members: Richard P. Adams (English), Tulane Uni-

versity; Ralph S. Brown, Jr. (Law), Yale University; Clark Byse (Law), Harvard University; Bertram H. Davis

(English), Washington Office, ex officio; David Fellman

(Political Science), University of Wisconsin; William P. Fidler (English), Washington Office; C. William Hey- wood (History), Cornell College; William J. Kilgore (Philosophy), Baylor University; Walter P. Metzger (History), Columbia University; John R. Phillips (Eng- lish), Western Michigan University; C. Dallas Sands

(Law), University of Alabama; Winton U. Solberg (History), University of Illinois.

ADDENDUM A

A. Executive Vice President F. W. Conner's full state-

ment, read to the Personnel Board of the University, June 8, 1967.

1. Tenure is not something to which a faculty member has an automatic claim. As is clearly indicated in the Faculty Handbook, the Constitution of the University, and the Statement on Academic Freedom and Tenure of AAUP, the period in the employment of a faculty member before the time when a tenure decision must be reached is a probationary period and the decision itself is a discretionary one. 2. It is right that this should be the case since the granting of tenure is a very serious commitment on the part of the university and a very valuable guarantee to a faculty member. It is a guarantee by the university to the faculty member of permanent employment until retirement which may not be revoked without serious and publicly demon- strable cause and "due process.*' 3. The decision to award or not to award tenure in the University of Florida is made by the Board of Regents acting on the recommendations of the department, the department head, the college dean, the Personnel Board, and in some areas of the University of other groups and individuals in addition. It is arranged also that a department head may initiate a nomination for tenure and the Presi- dent may recommend for or against the awarding of tenure without the agreement of other individuals or groups. 4. The bases on which tenure is awarded are two: (1) competence, (2) qualities of personal character, principle, and behavior which give promise that the individual will be of long-term value to the University. The University Constitution states: "Nomination of a faculty member for tenure shall signify the President is satisfied that a high degree of competence has been demonstrated and continuing employment of the faculty member will serve the best interests of the institution and the University System." Generally speaking, these are the bases on which important appointments are made in most lines of endeavor. 5. I intend to vote against the recommendation of tenure for Dr. Marshall Jones on the second of these bases. My primary reason for this decision is that he has publicly urged in speech and print a principle of action which is contrary to, and potentially destructive of, the principles on which true universities must be organized. Dr. Jones's principle, set forth in a Kappa Delta Pi address entitled "The Role of the Faculty in Student Rebellion" which was delivered on this campus and published in the Educational Forum of January, 1966, is that the only practicable way in which significant changes can be achieved inside or outside a university is by rebellion and that democratic and other orderly processes are merely means of ratifying and implementing the changes thus forced. As organizations

16 For quotations from President O'Connell's "Reply and Comments" concerning the issues raised by the loyalty oath controversy, see Addendum B to this reoort.

17 In commenting on this sentence, President O'Connell stated in his prepublication "Reply": "The applicable state legislation provides that should any state employee refuse to sign the loyalty oath, the governing authority shall immediately discharge such person."

418 AAUP BULLETIN



committed to the processes and procedures of reason, I do not believe that universities can consistently or safely condone such preachment of strife as a standard mode of change. I attach illustrative excerpts from Dr. Jones's address. 6. There are other issues which enter into the question of Dr. Jones's candidacy for tenure, but this seems to me the crucial one - a crucial issue indeed for civic life generally - and more than sufficient reason for a decision against awarding tenure.

B. Excerpts from Dr. Jones's address, attached to Vice President Conner's statement.

For the great mass of humanity the only lever at their disposal for the initiation of social change is rebellion. The topic, therefore, of my talk tonight is "The role of faculty in student rebellion."

* % * Rebellion is open resistance to authority and not neces-

sarily governmental authority . . . there is no such thing as a quiet rebellion.

* * *

Opposition that does not amount to resistance is not really opposition at all; it is institutional role playing. Every- one knows that the King has a loyal opposition; but if the King really believes it is loyal, you can rest assured that he will not take it seriously. . . .

* * * I have talked to many student groups about rebellion,

resistance, etc. Always some student asks: Why can't things be done through channels? Why is it necessary to rebel? Why can't you just go to the Administration and persuade it to do differently? I always encourage these students to go ahead with their plans, if they have any; go through channels, attempt persuasion, but get on with it, because the sooner they do, the sooner they discover that it doesn't work. Authority is based on power, and power has its interests. One of the many fallacies under which we labor is that people in authority do not know what their interests are, that they can be persuaded into losing their jobs.

*

Faculty are no more able to manipulate power they do not possess than students are. They too in the last analysis must rebel if they expect to be taken seriously. . . .

If faculty expect students to listen to them, they must prove themselves. - Marshall B. Jones. "The Role of the Faculty in

Student Rebellion." The Educational Forum, XXX

(January, 1966), 135-42.

ADDENDUM B

Excerpts from President O'Connell's "Reply and Comments"

In accordance with traditional procedures of Commit-

tee A, a preliminary draft of the investigating committee's

report was sent to President O'Connell for correction of

errors and such comments as he cared to make. He

acknowledged receipt of the preliminary draft on June 1,

1970; on June 15, Executive Vice President Harry H.

Sisler requested an extension of time for the administra-

tion's reply. On August 10 a fifty-three-page "Reply and

Comments" was received from President O'Connell. In

the covering letter which accompanied the reply, the

President stated that "this report has been prepared by the

staff of the University of Florida, and I concur with it."

Many of the changes recommended in the reply had

previously been made following receipt of comments from other administrators at the University of Florida who are

mentioned in the preliminary draft of the report. Also, various paragraphs in the text of the report have been

revised in light of information supplied by the President. A number of his comments on factual matters and his

expression of opinions on the findings and conclusions of

the investigating committee have been indicated in foot-

notes to the relevant text. In this Addendum B to the report, there are quoted a

number of passages from President O'Connell's "Reply and Comments" which deal with significant issues raised

in the report. The investigating committee believes that in

substantial degree the treatment in the body of the report itself is sufficiently responsive or indicative as to the positions taken in these passages. With respect to several of

these passages the committee has, however, felt additional

comment to be desirable.

I. Inquiry into the Disclaimer Oath Dismissals: President

O'Connell's Comments

"As stated in the report, the Chairman of the investi-

gating committee did visit the campus of the University of Florida on April 7 and 8, 1970. It is not stated that

his visit was for less than twenty-four hours and that he

joined a committee of the Association of American Law

Schools, after it had begun and completed a good part of

its investigation. Nor does the report state that the

Chairman of the investigating committee was informed

that the University of Florida has prepared a presentation on the loyalty oath matter and that it desired to make

the presentation to him for his consideration. The pur-

pose of the presentation was to inform him of the devel-

opment of the loyalty oath matter and how it had been

handled in every respect. The Chairman of the investi-

gating committee stated that his time schedule was such

that he did not have the time for such presentation. . . .

"The University's position in the loyalty oath matter

was simply that the President of the University had a

ministerial function to perform under the loyalty oath

statute, and there did not and does not now appear to

have been any discretion lodged in the University under

that statute. The American Association of University Professors addressed itself to the loyalty oath question in

1956 and stated with regard to disclaimer oaths, such as

the one required at the University of Florida:

... We urge the academic profession not to be lulled, by the hope of possible non-enforcement or by a merely rou- tine application of these measures, into an acquiescence in their maintenance as "paper" requirements. They should not be tolerated even as relics from which life might appear to have departed; for they would not only be an evil herit-

age unworthy of our traditions and our goals; their revivifi- cation would always be an ugly possibility. They should be steadfastly opposed until they are eliminated. At the same time, we cannot condemn educational institutions or teachers for yielding to the constraint of laws embodying such requirements, even though we regard the laws con-

taining them as pernicious. . . .

"It certainly seems at this point that despite the fore-

going statement of the American Association of Univer-

419 WINTER 1970



sity Professors, and despite the fact that the chairman of the investigating committee refused to hear the views of the University, the investigating committee does, in fact, intend to condemn the University of Florida. It would seem that the investigating committee should have addressed itself to the matter, in light of the statement, regardless of what they intended their recommendation to be. ...

"The committee fails to point out that President O'Connell asked the Board of Regents to join with him and with those bringing the lawsuit to get a speedy resolution to the constitutional questions involved in the loyalty oath. It did not point out that President O'Connell did not oppose in any way the application for temporary restraining order made by the plaintiffs in the lawsuit. Further, the investigating committee failed to point out that President O'Connell did not oppose in any way the plaintiff's application to the Fifth Circuit Court of Ap- peals for injunctive relief. President O'Connell did not oppose in any way the plaintiff's two applications to the Supreme Court of the United States for injunctive relief. On each of these occasions, the plaintiffs based their application for injunctive relief on, among other things, that the irreparable injury would come to them by virtue of being discharged and the doubtful constitutionality of the oath statute. The District Court held that the plaintiffs had not shown that they would be injured in any way that could not be compensated for in money damages, should they be discharged. The Supreme Court in refusing their application for injunctive relief, at least by inference, held that they had not demonstrated irreparable injury (injury that could not be compensated for in money damages) or did not demonstrate the doubtful constitutionality of the loyalty oath statute. All of this occurred prior to time that the three faculty members and one Career Service Employee were discharged for failure to execute the oath. . . .

"Professor Lamborn raised neither factual nor legal issues outside the litigation, although opportunity was afforded for him to do so. Those issues raised in the litigation were placed there by Mr. Lamborn and his colleagues. It seems that the forum of their choice (the Federal Court System) is the proper forum for the resolution of such issues. One of the faculty members discharged did take advantage of the opportunity to express his views and his reasons for not signing the loyalty oath.

"The meeting with Dr. Conner prior to discharge was for the sole purpose of determining whether or not there were any issues involved. None were raised. Despite the fact that no issues were raised by any of the four employees, there does not seem to be any reason why a formal hearing for the purpose of allowing the employees to express their reasons for their refusal to sign the loyalty oath could not have been held if the employees had desired such. Such was not suggested by anyone at that time, nor was the University advised of the Idaho decision cited by the investigating committee."

The Chairman of the Association's investigating committee believes that President O'Connell was misinformed

with respect to the Chairman's willingness to hear all that the administration wished to say on the disclaimer oath dismissals. The Chairman states that his reference to

insufficiency of time was made in the course of a discussion with a representative of the administration on a

request that the Chairman extend his stay on the Gaines- ville campus for a further discussion of a recent revision of the University's tenure regulations; his remark had no reference to receiving the University's views on the oath matter. On the contrary, the Chairman believes that he was supplied all the relevant information provided the committee representing the Association of American Law Schools which was also investigating the dismissals related to the disclaimer oath requirement. Further, during his

April, 1970, visit to the campus, the Chairman of the AAUP committee, in addition to conferring with several officers and leaders of the local AAUP chapter, various

faculty members of the College of Law, and Professor

Lamborn, met with President O'Connell, Vice President

Conner, Counsel for the University, the University Di- rector of Personnel, and the Dean and Associate Dean of the Law School, and also with Chancellor Mautz of the Florida system of higher education.

The italicized sentence in President O'Connell's

quotation from the Association's 1956 report on Aca- demic Freedom and Tenure in the Quest for National

Security (wholly aside from the relevance as well of the

preceding sentences and materials in the report) was

hardly intended to indicate that due process was not to be provided. Rather, a subsequent section of the report (section B 8) stresses that the principles of procedural due process contained in the 1940 Statement of Principles are as applicable when the substantive grounds for dismissal relate to loyalty and national security as when they relate to instances of challenge to the faculty member's tenure on other grounds.18

The committee believes it not to be consonant with the essence of due process that an a priori determination be made as to its necessity or appropriateness in the given circumstances. Actually, in the instant case, at least the following questions and issues would seem to have made appropriate an offer by the University of an opportunity for a hearing to the faculty members before their dismissals became effective: the reasons for their refusal to comply with the statute; the facts and implications of the prior history of and relating to the statute (e.g., of the previous cases holding various provisions of the statute unconstitutional, the previous delays in effective enforcement, and the faculty members' own prior actions regarding the oath); the risk to them as plaintiffs of loss of standing and hence of mooting the issues in the pending litigation if they were to execute the oath; the actual legal hazard to the administration in delaying action in the form of dismissal pending the outcome of the litigation; and, in any case, the availability and appropriateness of procedures in which the interests of both parties could be protected pendente lite under judicial order.

1SAAUP Bulletin, Spring, 1956, pp. 49, 59.

^AV AAUP BULLETIN



As President O'Connell points out, he and his counsel did ask for a speedy resolution to the constitutional questions involved in the loyalty oath. With respect specifi- cally to the application for a temporary restraining order made by the plaintiffs in the law suit, it is the investigating committee's information that counsel for the Board of

Regents opposed the granting of the temporary restrain-

ing order, and that counsel for President O'Connell indicated no position with respect to the matter.

2. President O'Connell's Comments on the Conclusions of the Investigating Committee

"The conclusions reached by the AAUP investigating committee constitute serious criticism of University procedures, which could create severe repercussions at the

University of Florida itself, causing its reputation to suffer elsewhere. Since these conclusions are of such a serious nature, the bases for these conclusions could have been ascertained only through a thorough and concerted effort to obtain the facts and the view of all parties concerned. This was obviously not done in the process of

interviewing the dissident or disillusioned faculty mem-

bers, for no opportunity was offered by way of rebuttal for the University."

These statements and various others in President O'Connell's "Reply and Comments" fail to take account of the assurances given the administration, and later im-

plemented, that it would be provided with a preliminary draft of the report and that its comments would be studied

carefully, prior to publication, in light of the full record of information available to the investigating committee. It is the belief of the committee that Addendum B, to-

gether with revisions of text and footnote treatment made or added, and the development in the report itself of the

significant factors in the case, are clear evidence of the efforts of the Association appropriately to reflect the information supplied by the administration and others at the University of Florida as well as their views on that information.

ADDENDUM C

Excerpts from a Second Comment by President O'Connell

Upon completion of a revision of a preliminary draft of.

the report in light of information supplied in President O'Connell's "Reply and Comments," a copy was sent to the President. His seventeen-page response to that revision was received on November 27, 1970. Several passages - one in the body of the report and another in a footnote - were altered to conform with information which the President said was obtained from persons interviewed

during the investigation. Significant portions of President O'Connell's second prepublication statement are published below.

1. Further Comments on the Positions of Vice President Conner and Former President Reitz

"Executive Vice President Frederick W. Conner's position can be stated quite simply. He felt the questioned

speech and article constituted a declaration by Dr. Jones of a course of action that he intended to follow as a member of the faculty of the University of Florida, and in his

relationship with students, in their extracurricular activities. He felt then and still feels that, taken as such, it was and is a legitimate matter of consideration when making a decision on the award of tenure to a faculty member. . . .

"Dr. Reitz stated the reasons for his decision in his

deposition taken by counsel for Dr. Jones and stated it

again to the investigating committee. This position has been consistent despite the contrary inferences from the

investigating committee report. The investigating committee has concluded otherwise based upon erroneous and inaccurate matters which it sets out as fact. . . . [The report] states that President Reitz read portions of Dr. Jones's published article at the second meeting of the Per- sonnel Board. The University has interviewed each of the six available members of the Personnel Board and none of them recall him having done so.19 Further, the investi-

gating committee (as well as the majority of the Uni-

versity's Academic Freedom and Tenure Committee) refers to the quoted material [see p. 410] of the revised

report as being a statement of Dr. Reitz's reasons for not

recommending tenure. This is not the case, but was an

attempt by him to explain the reasons for the Personnel Board's action. This becomes quite apparent upon a review of the outline which he prepared and followed in reporting to the faculty of the College of Medicine and the sentence

immediately preceding the quoted material in the original document. The quoted passage is very much like a portion of Dr. Conner's statement. There is, however, language that gives it an entirely different connotation from that

conveyed by Dr. Conner's statement, to-wit: '. . . He has

implemented his philosophy by a series of actions and interactions with students. . . .' "

2. Further Comments on the Hearing before the Faculty Committee

"As pointed out in our reply to the earlier report, Dr.

Jones did not follow the prescribed procedures for review of Dr. Reitz's decision until after he had taken steps to

bring pressure to bear through students and faculty on the new President of the University to reverse the decision out-of-hand made by his predecessor. Dr. Jones's public campaign was launched before the new President had been

on campus three weeks. Dr. Jones did not even see fit

19 Professor Gladys Kammerer, a member of the Personnel Board at the time that body considered Dr. Jones for tenure but since deceased, addressed a letter to the General Secretary, dated July 5, 1967, in which she gave some views on the com-

position and functions of the Personnel Board. She attached to this letter a signed statement entitled "Calendar of Events in Jones Case," which is a brief summary of the Personnel Board's consideration of the Jones case from May 3 through June 8, 1967. Under the date of June 8, 1967, Professor Kam- merer states: "Discussion lengthy on Jones. Reitz reads selec- tions from article by Jones in January 1966 Educational Forum, which was delivered as a speech to Kappa Delta Pi, educational fraternity. It states that he as a professor helps students to rebel against university authorities."

WINTER 1970



to inform the new President of his desires in the matter until after his public campaign was well under way.

"At the insistence of Dr. Jones (and properly so), the only decision for review by the Academic Freedom and Tenure Committee was that of former President Reitz. As stated in the investigating committee report, the Aca- demic Freedom and Tenure Committee was a standing committee of the University Senate composed of faculty elected to membership by the Senate. Dr. Jones secured the service of eight members of the faculty of the College of Law to represent him in the hearing. The President of the University appointed two members of the law faculty to investigate and present the case on behalf of the Uni-

versity. After appointment of counsel for the University, the matter was then handled completely and totally by the faculty without administrative guidance or interference. While it may be argued that the President should have exercised control or direction in the matter, it must be re- membered that the President was newly appointed and that the hearing concerned matters occurring prior to his

appointment and with which he had no familiarity. The

hearing proceeded until it was prematurely terminated after Dr. Jones announced that he no longer desired tenure be awarded to him. Dr. Jones, through his counsel, re- newed his motion made at the end of his case, that judgment be entered stating that his academic freedom had been violated by Dr. Reitz, and that tenure should have been awarded to him. Appointed counsel for the Uni- versity moved at the same time for entry of judgment, upholding Dr. Reitz's decision on the basis that the matter for consideration by the Committee of Academic Freedom and Tenure had been mooted and that the evidence to that point could not support a decision for Dr. Jones. The Hearing Committee decided to terminate the evidentiary hearing at that point in order to decide the motions presented to it with the understanding that in the event none of the motions were granted, the Committee would return and continue the evidentiary hearing.

"The investigating committee's oft-repeated conclusion, that the record did not provide evidence to sustain Dr. Reitz's decision, ignores this premature termination of the case. Counsel for the University had called only two witnesses of thirty-eight planned to be called. This is clearly a matter of record before the Hearing Committee. The investigating committee's conclusion that there was no substantial evidence to support the findings of the majority opinion of the Hearing Committee indicates a desire by the investigating committee to overlook that evidence introduced by Dr. Jones as part of his case, as well as a failure by the investigating committee to appre- ciate its role in reviewing the action of the Hearing

Committee. Such role is set out in the Model Case Pro- cedure as determining whether the record of the hearing contains substantial evidence in support of the decision of the Hearing Committee.

"Instead of attempting such review, the investigating committee merely announces a preference for the position taken by the minority. While it recognizes that the burden was on Dr. Jones to show that the reasons for denial of tenure to him were in violation of his academic freedom, it does not (nor did the minority of the Hearing Com- mittee) in any way attempt to justify its preference by reference to the evidence before the Hearing Committee.

"As the majority held, Dr. Jones's evidence simply did not support his allegation that Dr. Reitz's decision violated his academic freedom. Dr. Jones introduced Dr. Reitz's reasons as expressed by him in a deposition taken by his counsel. Excerpts from that testimony clearly show that the majority was correct in its decision and that the only substantial evidence before the Hearing Committee was in

support of such decision.

3. Further Views by President O'Connell on the Con- clusions Reached by the Investigating Committee

"It is quite clear to the University of Florida that the revised report contains many inaccuracies and distortions. It appears from the revised committee report that the

positions of Dr. Conner as a member of the Personnel Board, and the position of Dr. Reitz, in making the decisions to deny tenure, are central to this entire matter. The University of Florida cannot state that the position taken by Dr. Conner is a correct position, nor can it state that the position taken by Dr. Reitz is a correct decision. However, it can and must state that their positions are worthy of consideration on the merits without distortion. It has no right to insist that the American Association of University Professors approve the position as stated by either of them. The University of Florida does have the right, however, to insist that the American Association of University Professors address itself to those positions in a responsible manner. The University of Florida does not feel that the revised report is sufficiently accurate or thorough to serve as a basis for such a decision. It therefore cannot accept any decision made by the American Asso- ciation of University Professors or any other organization as long as such decision is based upon the inaccurate and distorted presentation as contained in the revised report.

"With respect to the loyalty oath, it cannot accept a decision of any organization that the handling of such was improper without the University having an opportunity to fully and completely present its position and its views on the development and ultimate handling of it."

422 AAUP BULLETIN



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