In the Matter of Dr. Kenneth H

In the Matter of Dr. Kenneth Howell

Report of a Subcommittee of the Committee on Academic Freedom and Tenure of the University of Illinois at Urbana-Champaign

By letter of July 20, 2010, Interim Chancellor and Provost Robert A. Easter charged the Committee on Academic Freedom and Tenure (CAFT) as follows: “to determine whether the process leading to the decision followed Departmental and College policies and also if the decision to discontinue Dr. [Kenneth] Howell’s adjunct appointment did indeed constitute a violation of academic freedom.” Toward that end and pursuant to its rules CAFT appointed the undersigned subcommittee to inquire and report to the Committee. The subcommittee met with: Professor Robert McKim, at the time of the events under investigation the head of the Department of Religion in the School of Literatures, Cultures, and Linguistics in the College of Liberal Arts and Sciences (LAS); Ann Mester, Associate Dean of LAS; Ruth Watkins, Dean of LAS; Steven Veazie, Esq., Campus Legal Counsel; and Dr. Howell (who was accompanied by his legal counsel and a monsignor of the Roman Catholic Church). All those interviewed were most cooperative and we are indebted for their candor.
What follows will summarize the events under investigation the basic facts of which are not in dispute. We will then state what we see as the issues these events present and will analyze them from the perspective of university policy and sound academic practice. At the close, we will offer some recommendations for future action.

I. The Sequence of Events
A. Background: The Newman Foundation Connection
For many years prior to 2000, the University had a relationship with the Newman Foundation under which courses in Catholic thought crafted by instructors of the Foundation’s selection and paid by the Foundation to teach them were taught for university credit. This became a source of considerable controversy starting in the late 1960s and early 1970s concerning Protestant foundations as well with which the university had the same or a similar arrangements.1 By the year 2000, however, only the Newman Foundation had retained that relationship; but in September of that year the terms were renegotiated with the then Program for the Study of Religion. Under the terms of the new agreement the courses in Roman Catholic Studies offered by the Program would be vetted through the normal course approval processes for all LAS courses. The agreement went on to provide that:
Individuals will be proposed for adjunct faculty status by the Newman Foundation, and shall hold appropriate scholarly credentials and shall be reviewed and approved for adjunct status according to the standard procedures for such positions. The faculty members and courses shall be subject to the same review and supervision by the Program for the Study of Religion as apply to all courses and members of the Program’s faculty. In turn, the adjunct faculty affiliated with the Newman Foundation shall have the rights and privileges accorded all faculty holding the same positions.

According to Professor McKim, at that point from the department’s perspective the glass became “half full”: the department was pleased that it and LAS had assumed oversight of course content but, despite the requirement of departmental review and approval of the adjunct instructors submitted by the Newman Foundation, for practical purposes, in the department’s view, the Newman Foundation continued to retain control over the designation of instructional staff. The department understood Dr. Howell, who had taught those courses for several years without faculty review of his teaching and without formal consideration of his continuance, to be, in effect, a legacy of the prior arrangement. As will appear in the discussion to follow, while his syllabi were approved the actual practice of his teaching was never formally evaluated; there was never formal departmental review attendant to a decision to continue-or discontinue-his appointment. It was simply assumed that he would continue from year to year, and he did. Toward the end of the Spring 2010 semester, i.e., at the time of the event in question, his course, Introduction to Catholicism 127, was listed for the Fall 2010 semester under his instruction.

B. The E-mail and its Aftermath
In May, 2010, a student e-mailed a message to Professor McKim relaying and enclosing a complaint about Dr. Howell from a student in Howell’s class on Introduction to Catholicism. The student attached an e-mail message from Dr. Howell to that class, sent in preparation for the final examination, which formed the basis for the student’s complaint. It is appended to this report.
Professor McKim was deeply disturbed by Dr. Howell’s e-mail on three grounds: (1) that the treatment of utilitarianism was “unprofessional,” i.e., he considered Howell’s discussion of consent to be out of place and his treatment of consequentialism to distort the idea that he was supposed to be explaining; (2) that the treatment of homosexuality in natural moral law lacked intellectual “distance,” i.e., to Professor McKim it purveyed what the Church believes to be true as an incontrovertable truth presented as such and, as presented, i.e., as a matter that the students are ill-equipped independently to question, to suggest that the students accept the instructor’s assertion of what the truth is; and, (3) that the treatment of homosexuality evidenced “poor judgment” in that it could be expected to and did offend, as evidenced in the student’s protest, especially his comments on the assumption of the sexual roles of the male and female in homosexual intercourse and the medical aspects of homosexual sex based upon a single anecdotal reference.
Professor McKim shared Dr. Howell’s e-mail with three senior colleagues who composed the department’s promotion and tenure committee as well as with a fourth because of the latter’s disciplinary expertise in Christianity. One found the e-mail to evidence professional incompetence to such an extent as to warrant termination. One suggested that Prof. McKim explore with Dr. Howell whether he, Howell, did not think the message unacceptable and why. A third said that the relationship with the Newman Foundation should be terminated which the Committee takes to intend a termination of Dr. Howell’s relationship to the department as well. Professor McKim also discussed the e-mail with Professor Douglas Kibbee, Director of the School of Literatures, Cultures, and Linguistics, who did not address the content of the message, and with Ann Mester, Associate Dean of LAS.
Professor McKim told the subcommittee that, as deeply disturbed as he was by Dr. Howell’s e-mail, he had not yet decided on a course of action but that Associate Dean Mester, as advised by campus counsel, was of the view that Howell ought not be continued. This, he understood, arose out of concern that the university might be sued by “the gay community” over the tenor of Howell’s remarks. More broadly, he told the committee, he was concerned about Howell’s “on-going” and “systematic” crossing of the “boundary” between teaching and indoctrination (though he acknowledged that this was mainly conversational evidence with students–the department had not formally documented this). Dean Mester told the committee that she was concerned about the e-mail’s content: primarily by its treatment of Catholic thought, as embodying a truth that the students were ill-equipped to question, which she regarded as a closing off of debate on what should be a debatable subject; but also by the possibility that the e-mail could create a hostile atmosphere for gay and bisexual students. She consulted Dean Watkins who advised her to consult campus counsel. In Mester’s view, confirmed by campus counsel, there was no obligation to continue Dr. Howell as an adjunct; in fact, as he was not to be paid by the university he was not, in her view, even an employee of the University. She informed the committee that the appointment of another adjunct (whose name need not be mentioned) had been similarly discontinued summarily for “inappropriate teaching” without incident.
Dean Mester was eventually able to discuss the matter with campus counsel Stephen Veazie. According to Veazie, he did not advise termination, but he saw no problem with terminating Dr. Howell’s relationship so long as no apology on the department or university’s part was made which might have implied institutional acceptance of responsibility for Howell’s e-mail message. Mester told the undersigned that she informed Prof. McKim that he was free to act as he saw best so long as he addressed counsel’s caution. In sum, Dean Mester, as the “point person” from the administration’s perspective at this time, understood that she was transmitting a “consensus view” endorsing the course of action that Professor McKim was advocating. Professor McKim understood that this option, which he was leaning toward, was being strongly encouraged if not actually ordered by the administration.
Professor McKim met with Dr. Howell to ascertain if the content of the e-mail was accurate: if he had transmitted it and whether it was the text he had transmitted. If so, he had decided to inform Howell that his appointment would not be continued. Howell confirmed the accuracy of the text and McKim informed Howell of his decision. According to Prof. McKim, he briefly canvassed the reasons for this action: that students would, rightly, be disturbed by his treatment of homosexuality, of the examples Howell had used; that it was insensitive and embarrassing. That Howell’s treatment of utilitarianism was “completely wrong” (to which Howell said, “you [meaning McKim in a personal sense] would have caught this”). And that his presentation of moral natural law “lacked distance.” Initially, McKim stated, Howell did not understand that he was being terminated. Howell said they’d talk more about it upon their respective return from foreign travels. So McKim had emphatically to inform Howell that he would not be returned to teaching in the Fall. Insofar as the department was concerned that is where the matter rested.
Dr. Howell remembers this conversation a little differently. He did not recall his treatment of utilitarianism to have been a subject of discussion. Prof. McKim’s primary concern was for the “damage” Howell’s treatment of homosexuality might cause the department and the university. McKim stated that the department had an interest in not offending students to which Howell replied that his role was not to make students “feel good” but to get them to think. Nevertheless, McKim asserted that on issues of special sensitivity one “has to be very careful.” The conversation proceeded on to the e-mail’s treatment of moral natural law. Howell believed that McKim’s personal pedagogical style, as is that of others in the department, is to decline to state his own conclusions. Howell’s approach is different: he is candid about his beliefs, but he insisted that he does not require students to accept his position. In other words, he draws a distinction between permissible advocacy and impermissible indoctrination. The Committee pressed him on the ground that his e-mail message could be read to state that as the teachings of moral natural law on human sexuality were grounded in “reality” and not in Church doctrine, a fair implication was that the students would be expected to agree with it-for who could contest an obvious reality of the natural world?-and, indeed, were admonished that they lacked the intellectual training to contest it. Dr. Howell stated that he was presenting the Church’s view of the truth as the Church’s view, not as truth in itself; and that his observation about the lack of student research grounding was meant to stimulate just such a student effort at independent research and thought. Dr. Howell was emphatic in his statements to the Committee that his role was to encourage critical thought, not to instill doctrine.
Dr. Howell confirmed that he left the meeting with Prof. McKim thinking the matter an open one. After McKim made it clear that Howell had been terminated he sought legal counsel from the Alliance Defense Fund.
The decision became the subject of public controversy not only surrounding Dr. Howell’s termination but also in regard to the relationship of the Department of Religion to the Newman Foundation. On the former, the public controversy, letters were received by the administration from the Alliance Defense Fund on behalf of Dr. Howell and from the Foundation for Individual Rights in Education (FIRE), which made what the Committee takes to be a thinly veiled threat of litigation. A meeting was held in mid-July involving a number of high-level administrators the result of which was a decision to offer Dr. Howell an appointment for the Fall semester. Professor McKim was informed of this decision. He did not agree with it; but, as the matter was out of his hands, he was in no position other than to state his lack of concurrence. There is no dispute that this decision was influenced by the university’s concern over a possible lawsuit-the absence of any documented record of Dr. Howell’s lack of professionalism in teaching would fare badly in defending that ground as a valid ground of action-and by the procedural concern that it would be better to maintain the status quo ante whilst the academic freedom issues were to be sorted out by the Committee on Academic Freedom and Tenure. Dr. Howell accepted appointment offered for the Fall 2010 semester.
On the latter, the relationship with the Newman Foundation, negotiations commenced with the Foundation and the Diocese of Peoria culminating in an agreement amicably arrived at in late July to terminate the arrangement with the Foundation. Henceforth, adjunct appointments in the Department of Religion would be made by the department through its process for appointment and renewal and the adjunct appointees paid by the university.
II. Analysis
In this case issues of procedure and of substance are closely intertwined. It is necessary to separate them for analytical purposes.
A. Procedure
The university employs approximately 700 people classified as adjuncts-adjunct in the ranks of instructor through professor, adjunct lecturer, adjuncts in clinical professorial ranks-and others who do academic work full-time under other, most often clinical, titles as well as lecturers and instructors. Adjunct faculty as well as instructors and lecturers are appointed on a semester-by-semester or on an academic-year basis. There is no university of campus restriction on the duration of time over which such an appointee may be continued in that status. There is no requirement of notice of reappointment or non-reappointment nor is there any requirement of formal review, although the office of Academic Human Resources recommends that persons in that status be reviewed annually as are all other academic staff under Provost Communication No. 21-23.2
Each academic unit is thus at liberty to act as it will with respect to such appointees and, not surprisingly, practice varies widely. In the History Department adjuncts (and other non-tenure track appointees) have their teaching subject to peer evaluation, usually annually, have their ICES scores reviewed by the department chair and are counseled by the chair in consultation with the executive committee if concerns about the quality of teaching surface. The College of Law does not require in-class review of adjuncts. The appointment of adjunct faculty is vetted by the College’s appointments committee subject to oversight by the faculty as a whole. Review thereafter is done by the Associate Dean, primarily on the basis of ICES scores and student comment. Underperforming adjunct faculty may be counseled in order to improve or simply not offered teaching assignments in the future. In the Department of Religion the head received the ICES reports on Dr. Howell, in recent years the department’s only adjunct teacher, but no other review was undertaken and, as Dr. Howell had favorable ICES scores, his continuance was assumed as a matter of course requiring no further collegial action. As Professor McKim noted, the relationship with the Newman Center and Dr. Howell was felt as a fait accompli.
This regulatory vacuum abetted the difficulty the department encountered in the wake of Dr. Howell’s e-mail. As the foregoing summary indicates, there was a degree of uncertainty about just what his relationship to the department was at that time. The administration, as advised by legal counsel, took the position that he was either a prospective employee or, even in his current adjunct status, one who could be continued or not at the university’s discretion. It is not obvious to the Committee that that was so. Dr. Howell had held the title of Adjunct Associate Professor for many years, had taught continuously without official notice of renewal, had expected to teach Introduction to Roman Catholicism, as did the department, and had been listed as teaching that offering in the Fall. By academic rather than legal standards a persuasive argument could be made that his summary removal from the course assigned in the Fall because of the content of his e-mail was a dismissal on which he should have been afforded academic due process.3 Thus the episode draws attention to a significant lacuna in the university’s regulations and one that is likely to become more vexing the more this university, as do many others, comes to rely on contingent faculty to assume a larger share of teaching. We will recommend a corrective course at the close.
B. Substance
Inasmuch as Dr. Howell has been reinstated, the Committee’s observations on his message to his students are intended for guidance in future. At the threshold, however, the standard to be applied to that communication needs be addressed.
On the one hand, in the give-and-take of classroom discussion and debate impromptu analogies or metaphors may be uttered or ideas essayed spontaneously that may be offensive to some but which may nevertheless serve a sound pedagogical purpose-to stimulate, instigate, or prod students to think critically about the matter at hand or to think skeptically about a disciplinary proposition. Such remarks are intensely context-specific: as they draw sustenance and immediacy from the chemistry of the class such passing remarks, when laid upon a bare page and taken in the abstract, may well be misunderstood. On the other hand, professional publications should be expected to have been well worked through; they are laid upon a bare page and are held up for critical assessment by professional standards of scholarly care.
Dr. Howell’s e-mail was sent to students in Religion 127-and copied to students in a more advanced course-to dispel their confusion about how utilitarianism as an ethical system related to moral natural law. Though it does not bear all the earmarks of a finely wrought professional exercise it is more like a thought-through professional exposition than an impromptu classroom expostulation and we shall treat it as such. And as such we need to consider the three problematical aspects identified by Professor McKim and the Associate Dean of LAS.
1. Utilitarianism. Professor McKim, in consultation with other senior faculty in the department, believed Professor Howell’s explanation of utilitarianism to have been woefully deficient to the point even of questioning Howell’s professional competence. Obviously, a manifest failure to comprehend the subject or to explain it accurately is not sheltered by academic freedom; and Professor McKim believed that Howell’s e-mail did just that. Though Howell connected utilitarian analysis to the role of individual consent, utilitarianism does not; utilitarianism takes a purely consequential approach to moral reasoning irrespective of individual consent. Further, according to McKim, Howell’s account of how a utilitarian would assess a decision of whether to engage in homosexual activity misstates how a utilitarian would assess the full range of interests at stake. The Committee need not evaluate that judgment at this point save to say that the criticism cannot be said on its face to be without substance.4 Professor Howell’s competence in the subject can and should be subject to collegial review; but, because of the unique history of his status, no review was ever undertaken.
2. Distance. The question of “distance,” as Professor McKim put it to the Committee, is a matter of some delicacy. Professor McKim opined that in law, philosophy, classics, and any number of other disciplines the instructor could espouse a theory and vigorously defend it in anticipation, in due course, of student rebuttal or “push back.” He agreed that such espousal would be an exercise of academic freedom so long as the students were not held to account for agreement with the instructor’s views. But religion, he opined, is different. It is inherently interdisciplinary, drawing upon history, philosophy, archaeology, linguistics, and more. There is no “correct” or dogmatic view, i.e., a religion may hold such, but the academic analysis of religion does not. Thus, he maintained, the department, reflecting the thought of the discipline as a whole, believed that instructors had to retain “distance” on the subject.
Professor McKim was given the following hypothetical: an instructor, who is of a deeply evangelical persuasion, explains to his class that those of that faith believe that all non-believers are damned to burn in hell for eternity. The instructor may say that as it is what the faith maintains to be true. A student asks, “As you are of that faith, do you believe that to be true?” He answers that he does, as well he should. The student follows up, “So you think it a fact that I will burn in hell for eternity”? May the instructor say, “yes”? McKim thought that he could; but, were the instructor to take the initiative consistently to convey the truth of his tradition as he saw it such would be beyond the bounds of academic freedom. Members of the Committee asked if he had any firm knowledge that that is what Professor Howell had been doing. He had none, but he understood the e-mail as stating the Catholic position on homosexuality not as a proposition of theology but as a proposition of fact about the real (or natural) world, one that should command student agreement as such, not as a religious proposition subject to scrutiny. He agreed that the idea of “distance” is a gray area, one he had struggled with. Yet, he insisted, his colleagues were unanimous that such was a key feature of the discipline and that Howell’s e-mail had departed from it.
For his part, Professor Howell maintained that he never required students to accept his position on Catholic doctrine. He insisted that his intent was to have his students think critically about the subject, not to accept his view of it.
The Committee comes away from its investigation on this point with two observations. First, it is not persuaded that religion differs in any significant regard from any other discipline: a disciplinary proposition maintained by an instructor in archeology may set flame afresh to disputes in India or Israel; a paleontological proposition may kindle strongly held religious objection; an historical argument might ignite any number of ethnic passions. The profession has long drawn the distinction between the essaying of one’s conclusions, arrived at by the exercise of a professional standard of care, as much before one’s students as before one’s peers, from an insistence that one’s students concur in one’s conclusions on professionally controverted questions.
Second, and closely related, is that the distinction between advocacy and indoctrination can be a delicate matter: what is said and what is heard can sometimes be very different and may depend on the listener more than the speaker. When faculty tread near that line must they be cautious about transgressing it? Because one would tend to steer wider the zone when the line is indistinct we fear that a painstaking parsing of what is said in hindsight can conduce toward a stultifying degree of self-censorship in future. Nevertheless, where there is evidence that, with due allowance for the “breathing space” academic freedom requires, the line has been crossed a department cannot be indifferent to it.
In this case, Professor Howell has insisted that his e-mail expounded what the church maintains moral natural law teaches to be true and he himself did not expound that this belief as “truth.” The difficulty is that elements in his message can be read in support of both. Though he maintained that he was attempting to stimulate critical thought and further study, the text, as read by Professors McKim and others, is capable of a different interpretation.
Consequently, all that can be said at this stage is that it is an exercise of academic freedom for a professor to put before her students her conclusions on professionally controverted questions, even vigorously to advance them, so long as students are not held to account for agreement with them; and that this is as much so for the study of religion as for any other discipline. Dr. Howell has pointed out that, save for this episode, no student of the many he has taught over the years has complained that he’d crossed the line and that his students include increasing numbers of non-Catholics, although Catholics still comprise a large majority of the students taking his classes. Even so, from the text of this message and the reading given it by faculty and administrators, we believe that there is a real question of whether, in this instance, Professor Howell has observed the distinction he drew.
3. Offensiveness. From the foregoing it should be clear that students have no right not to be offended; indeed, students deeply committed to some economic, political, religious, or philosophical teachings may be profoundly offended by having to engage with faculty criticism of those teachings-the more serious and thoughtful the criticism, the greater the likelihood of offense. We could not do our job, which is to instill the habits of a critical mind, if we had to be chary of giving offense. Accordingly, Professor Howell’s observations on homosexuality, relevant to the subject of moral natural law and its relationship to utilitarianism, should not be held to account because a student took offense. But they can be faulted on grounds having nothing to do with hostile student reaction; that is, as the Committee reads it, for being unlearned and jejune.

III. Conclusions and Recommendations

We offer the following for future guidance based upon this episode.

1. The university should adopt clear policies governing the appointment and renewal of adjunct faculty. Models exist elsewhere; the American Association of University Professors has proposed one.5 CAFT takes no position now on the detailed workings of what should be adopted save to stress that, at a minimum, it should require written notice of appointment, timely written notice of reappointment or non-reappointment, and make express provision for mandatory evaluation and review. Access to a grievance procedure and an assurance of due process for a dismissal during a period of service ought also be provided.
2. Given the abrogation of the agreement between the university and the Newman Foundation, the Department of Religion is free to decide whether it wishes to continue to offer courses in Catholic thought. Should the Department decide to continue those or similar offerings, the Department is free to appoint a candidate it deems best qualified to teach them, for example, by conducting a search for a suitable candidate.6 Dr. Howell has expressed his strong desire to the Committee to continue to teach courses in Catholic thought in the University. Accordingly, the Department should consider him for appointment or, should it wish to conduct a wider search, should place him under consideration in conjunction with others.
3. A declination to offer an appointment is not subject to challenge before the CAFT. However, due to the unique circumstances of this case, and the public controversy surrounding it, should the department decline to continue Dr. Howell in adjunct instruction and should Dr. Howell assert that that decision was based on considerations significantly violative of academic freedom the Committee believes that it ought be available to allow Dr. Howell to prove that that was so.

Subcommittee Members:
Matthew W. Finkin, Chair, CAFT, College of Law
Fouad Abd-El-Khalick, Dept. of Curriculum & Instruction
Jeffrey O. Dawson, Department of Plant Biology
Elizabeth Delacruz, School of Art and Design
Mark D. Steinberg, Department of History

1
 The history is recounted by Winton Solberg, The Catholic Presence at the University of Illinois, 76 CATHOLIC HIST. REV. 765 (1990).

2
 This information was supplied by the office of the Chancellor accompanied by the names, and periods of services for all persons in these classifications for each semester of this academic year.

3
 In a closely analogous instance such was the conclusion of Committee A on Academic Freedom and Tenure of the American Association of University Professors. Academic Freedom and Tenure: City University of New York, 90 ACADEME 43, 57 (Nov.-Dec. 2004). The chair of CAFT served as chair of this ad hoc committee of investigation.

4
 See Roger Crisp & Tim Chapell, Utilitarianism, in ROUTLEDGE ENCYCLOPEDIA OF PHILOSOPHY (E. Craig ed.) (viewed online Aug. 2, 2010).

5
 AAUP Recommended Institutional Regulations on Academic Freedom and Tenure § 13 “Part-Time Faculty Appointments,” available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/RIR.htm.

6
 Academic freedom is not implicated in a department’s decision to seek candidates with stronger credentials in a discipline than an incumbent adjunct possesses.

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