This is a report on two distinctly different cases atLouisiana State University, Baton Rouge, different in theadministrative officers involved and in the matters underdispute but alike in putting core issues of academic free-dom to the test. The first case, affecting a nontenuredassociate professor in the Department of Civil andEnvironmental Engineering in his seventeenth year onthe faculty, tested the relationship between freedom ofresearch and publication and freedom of extramuralutterance in a politically charged atmosphere. The sec-ond case, affecting a tenured full professor in theDepartment of Biological Sciences in her thirty-first yearon the faculty, tested the freedom of a classroom teacherto assign student grades as she sees fit.

Louisiana State University and Agricultural andMechanical College, Baton Rouge, the state’s flagshipuniversity, was founded in 1853 as the Louisiana StateSeminary of Learning and Military Academy. It is thedominant unit of the Louisiana State University System,now composed of five institutions, each headed by achancellor, under the authority of a system presidentand a board of supervisors. Dr. Michael V. Martinassumed the chancellorship of LSU, Baton Rouge, on

August 1, 2008, having previously served as president ofNew Mexico State University. The system, together withthree other Louisiana systems of education, falls in turnunder the jurisdiction of a governor-appointed com-missioner of higher education and a sixteen-memberboard of regents.

As of 2009, LSU, Baton Rouge, enrolled 21,000 under-graduate and 4,000 graduate students in seventeenschools and colleges, with approximately 1,250 full-time faculty members. Its administration had embarkedin 2003 on a seven-year National Flagship Agenda,“focused on how [LSU] could improve its research andeducational enterprise to make it more nationally com-petitive.” Achievement of its goals, necessitating “anincrease in resources from a variety of sources—federal, state, and private,” has been hampered bybudgetary difficulties facing the state of Louisiana ingeneral and its systems of higher education in particu-lar, though these difficulties have been felt to verydifferent degrees in LSU’s various colleges.2

1

Academic Freedom

and Tenure:

Louisiana State

University,

Baton Rouge1

1. The text of this report was written in the firstinstance by the members of the investigating committee.In accordance with Association practice, the text was thenedited by the Association’s staff and, as revised with theconcurrence of the investigating committee, was submittedto Committee A on Academic Freedom and Tenure. Withthe approval of Committee A, the report was subsequentlysent to the faculty members at whose request the investiga-tion was conducted, to the administration of LouisianaState University, Baton Rouge, to the president of the AAUPchapter, and to other persons directly concerned in thereport. This final report has been prepared for publicationin light of the responses received and with the editorialassistance of the staff.

© 2011 AmericAn AssociAtion of University Professors

R e p o r t

J u l y 2 0 1 1

2. In 2005–07, an AAUP Special Committee onHurricane Katrina and New Orleans Universities under-took an investigation that included two units of theLouisiana State University System: Louisiana StateUniversity Health Sciences Center (LSUHSC) and theUniversity of New Orleans (UNO). The Association did notimpose censure on the LSUHSC administration, largelybecause of reforms in official policies. The Association didimpose censure on the administration of UNO in 2007,and its policies were significantly revised early in 2011.For the special committee’s report, see Academe, May–June 2007. The UNO censure was removed by the annualmeeting in June 2011. A month later, Louisiana’s legisla-ture and governor acted to remove UNO from the LSUSystem and make it the ninth member of the Universityof Louisiana System.

I. Factual Background (before HurricaneKatrina)Dr. Ivor van Heerden, a coastal geologist and hurricaneresearcher, received his BSc degree from the Universityof Natal in his native South Africa and his MS and PhDin marine sciences from Louisiana State University,Baton Rouge. His full-time faculty service at LSU beganin August 1992, when he received a grant-funded “softmoney” appointment in the College of Basic Science asan assistant professor–research. That initial appoint-ment, designated a “summer” research project involv-ing flood management in the Atchafalaya Basin, was ona fiscal-year basis. In July, however, before the appoint-ment began, the director of the Center for Coastal,Energy, and Environmental Resources (CCEER),Professor Charles G. Grout, wrote to assure Professorvan Heerden that the position would later be advertisedat the associate level as “permanent” and include theacademic responsibilities necessary for the nine-monthappointment. In the event, the position came throughat the associate level with academic responsibilities, butit was permanent only in the sense that no end date wasspecified. Professor van Heerden began in August 1992as associate professor–research and retained that rankthroughout his LSU career.

Applicable LSU policies exclude “research faculty”from accruing credit toward tenure, and Professor vanHeerden’s first five years were to be partially grant-funded, yet his appointment from the outset carried aca-demic responsibilities beyond research. Faculty memberswho later discussed his situation with the undersignedinvestigating committee emphasized the irregularnature of his appointment, questioning—as the FacultyGrievance Committee was later to question—just howthe provisions of various policy documents could andshould apply in his highly atypical case.

An important aspect of Professor van Heerden’s workthroughout his affiliation with LSU was close interac-tion with and technical assistance to local, state, andfederal agencies. In 1994, while continuing full timeat LSU, he was appointed assistant secretary of theLouisiana Department of Natural Resources to managethe state’s coastal and habitat restoration program,based on a comprehensive environmental managementplan he had developed and described in a 1993 report.Under the state’s plan, which provided for multifacetedlarge-scale restoration, Professor van Heerden was re-

sponsible for ensuring the transfer of technology andideas from academia to local government and to stateand federal agencies involved in restoration. From1992 to 1998, he was director of the Natural SystemsManagement and Engineering Program at LSU’s CCEERwhile maintaining his research professorship, dividinghis time among a number of projects in his areas ofexpertise, notably in flood management. In 1995, heauthored “A White Paper—The State of Louisiana’sPolicy for Coastal Restoration Activities,” which set theofficial state policy for coastal restoration in Louisiana.In 1997, because he had exceeded the statutory limit offour years for a term appointment at the level of associateprofessor, his position was reclassified as a “hard-money”appointment under the state’s general fund, althoughhe had already established and would maintain an im-pressive record of securing grant and contract income.Professor van Heerden continued to be paid by thestate’s general fund through the end of his appointmentin 2010, a fact that rendered his position an exceptionto official policies on research-series appointments.

In February 1998, Professor van Heerden began anappointment with the Louisiana Geological Survey(LGS), heading the River Basins and WetlandsManagement Section. Dr. Lynn Jelinski, then vicechancellor for research, sent a team of LSU scientists,including Professors van Heerden and Marc Levitan, toHonduras to conduct assessments after Hurricane Mitchhad left more than ten thousand people dead. Their col-laboration led to the founding of the LSU HurricaneCenter, which figures prominently in this report, underthe administrative authority of the Office of Researchand Graduate Studies. Professor Levitan, an associateprofessor of civil engineering with a specialty in windengineering, was appointed the center’s director and,from July 2000, Professor van Heerden was its deputydirector, with responsibility for developing a “fundedresearch program related to storm impacts on the natu-ral environment” and for carrying out associatedadministrative and academic duties.

At the beginning of the 2000–01 academic year,Professor van Heerden transferred to the Department ofCivil and Environmental Engineering (CEE) within theCollege of Engineering, initially with a ten-monthfiscal-year appointment. He sought the transfer, he said,to be able to work more closely with graduate studentsand to have teaching opportunities unavailable in LGS.2

The Case of Professor Ivor van Heerden

In a September 28, 2000, memorandum, the interimvice chancellor and dean of the graduate school statedthat the change was intended “to better reflect the serv-ices you have been providing to the university and tobetter take advantage of the expertise you have to offer.”The memorandum also noted that the “position andthe funds transferred to CEE will revert to the Office ofResearch and Graduate Studies at such time as the posi-tion is vacated”—a provision that would later be ofcrucial importance.

The appointment to the CEE department, which wasendorsed by the department’s faculty, required thedevelopment of a revised position description, whichProfessor van Heerden’s new department chair preparedin consultation with the Office of Human ResourceManagement (HRM). It listed his various duties andresponsibilities, assigning the percentage of time to bedevoted to each: “program development and supervi-sion” was to occupy 35 percent of his time; “basic andapplied research” was to take 30 percent; participation,as needed, in other LSU programs was to take 20 per-cent; and “technical assistance to state and federalagencies” was to take 15 percent. This same positiondescription remained on record with HRM through2010.

In accordance with the 20 percent assignment toother academic programs, Professor van Heerden partic-ipated in the establishment of a new undergraduateinterdisciplinary minor in disaster science and manage-ment in the College of Arts and Sciences and beganteaching a core course that he had developed—Hazards, Disasters, and the Environment—in fall 2001.He later taught two graduate seminars as well.

Perhaps no one noticed at the time of Professor vanHeerden’s transfer to the CEE department, but this newappointment seems to have placed him in an untenablesituation: the guidelines then in effect for research pro-fessors in the engineering college made him ineligiblefor the research professor title he had held since 1992.From the perspective of the college’s administration,research professors’ appointments were term appoint-ments paid from contracts and grants; Professor vanHeerden’s eligibility for a term research appointmenthad long since expired, and, as previously noted, he wasnow being paid from the state’s general fund. From theperspective of the Office of Research and GraduateStudies, which had become responsible for his salary,Professor van Heerden’s position was outside the tenuresystem, yet it was a continuing position.

How these very local perspectives and decisions playedout under the more general rules of LSU and the LSU

System will be discussed below. At the outset, everyoneseemed satisfied with the arrangement, and in January2002 Professor van Heerden assumed additional dutiesas the founding director of the LSU Center for the Studyof Public Health Impacts of Hurricanes, funded by afive-year, $3.65-million grant from the Louisiana Boardof Regents. According to a press release issued at thetime, it was to be operated by the Hurricane Center andits purpose was to “consider and evaluate possible hur-ricane scenarios in an attempt to predict the impact of ahurricane strike, the preparations that should be madeto prepare for such a strike, and post-disaster recovery.”Central to the efforts of the two “sister” centers was thedevelopment of computer models for predicting hurri-cane storm surges, models minutely calibrated to localterrain that could provide accurate information onwhich the public, government agencies, first responders,oil companies, and others could rely in an emergency.The Hurricane Public Health Center, as it came to beknown, also examined such hurricane- and flood-relatedissues as mass evacuations, emergency accommodationfor people and their pets, the spread of infectious diseases,contamination of the water supply, and residual con-tamination of air and soil. The department’s 2002 fallnewsletter reported with pride about the “$3.7-millionHealth Millennia Fund grant.”

Professor van Heerden’s department chair at thistime, Professor George Z. Voyiadjis, was supportive. In amemorandum dated August 15, 2002, he wrote in favorof Professor van Heerden’s being moved to a nine-month “academic appointment,” describing him as “asolid member of our faculty, [who] conducts researchand serves on the committees of four graduate students.He continues to make strong contributions to ourdepartmental research goals as well as carry out [a]vigorous individual research program. Dr. van Heerdenis an asset to our department, and we are honored toinclude him as part of our research personnel.”Professor Voyiadjis also wrote, “[T]his is not a tenure-track position at this time.” He was later to testify that,although Professor van Heerden was not required toteach classes, he was rated 3.5 on a 4-point scale inundergraduate student evaluations. “I applaud him forthat,” he added. For the first half of his decade as amember of the CEE department, Professor van Heerdenreceived consistently positive performance evaluationsfrom his chair, evaluations including recognition ofand commendation for the service and teaching aspectsof his position. His chair praised his success at researchfunding but encouraged him to publish more refereedarticles in professional journals. 3

In November 2003, Professor van Heerden underwent aformal reappointment review by the CEE department fac-ulty. His position description was interpreted as 5 percentadministration (the deputy directorship) and 95 percentresearch. The senior faculty members conducting thereview commented on his performance in the traditionalcategories of instruction, research/scholarship, andservice. Professor van Heerden had by then taught hiscore undergraduate course on disaster science and man-agement three times and had served on the committeesof five students—one PhD and four master’s degreecandidates—but, noting that “his appointment has noteaching requirement,” the faculty committee did notassess his teaching. He was judged to have an “out-standing level of research funding.” His research outputin publications was “less than the norm for the depart-ment, but reflects the particular nature of his appoint-ment with its emphasis on advisory and technologytransfer activity” (that is, service), an activity judged“notable.” The review recommended his reappointmentfor three additional years.

Within the context of Professor van Heerden’s general-ly positive annual evaluations, conducted by his depart-ment chair, a matter of contention was the percentage ofeffort he was supposed to devote to research. Members ofthe CEE faculty listed their activities annually and sub-mitted them electronically to the chair, who then providedan overall evaluation and made comments on instruc-tion, research/scholarship, and service/professionalactivity. The investigating committee noted a variety ofinconsistencies and errors, some trivial, some continuingfor years before being corrected in Professor van Heerden’sevaluations. When asked about them in his deposition,Professor Voyiadjis testified that he had assistance inthese matters and made no great effort to root out mis-takes himself, having some thirty-five members of thedepartment to review. Professor van Heerden told theinvestigating committee that he had conscientiouslyrecorded the correct percentages given in his job descrip-tion every year, but that Professor Voyiadjis had annual-ly deleted them. Professor Voyiadjis testified that he hadchanged the percentage of effort in research to 100 per-cent every year over Professor van Heerden’s objectionthat instruction, service, and professional activityaccounted for 70 percent of his position description.Professor Voyiadjis conceded that Professor van Heerden’sinterpretation of his position had been derived from theprevious chair, but, he stated, “I explained to him thathis coming with the title of Associate Professor ofResearch . . . [meant] that [his position] is 100 percentresearch.” On another occasion the chair told him, “My

evaluation is solely on research.” Professor van Heerden’sdisputed research percentage was to be pivotal for his case.

A June 2004 evaluation by Professor Voyiadjisobserved that Professor van Heerden “is publishing hisresearch work in refereed archival journals at the sametime that he is being called upon as a speaker fornumerous groups.” That same year the LSU GraduateCouncil approved Professor van Heerden for a three-yearterm as an associate member of the university’s gradu-ate faculty, a membership that previous evaluations hadidentified as important. The documentation supportingthe nomination, submitted by Professor Voyiadjis, listedProfessor van Heerden’s duties as 20 percent teaching,30 percent research, and 50 percent administration.

The College of Engineering, in step with LSU’s 2003National Flagship Agenda, adopted a new mission state-ment in September 2004 that appeared to embrace thesort of applied science that the two hurricane centerssupported:

To serve as a center of learning and a source oftechnical expertise for Louisiana and the Nationby graduating skilled engineers and constructionmanagers well prepared for productive profession-al careers; to identify and develop new technolo-gies through leading-edge research; and to dis-seminate and implement these technologies forthe benefit of government, industry, and society.By letter of March 17, 2005, then-dean of engineering

Zaki Bassiouni commended Professor van Heerden’ssuccess in obtaining funding for Gulf Coast hurricanesurge modeling, remarking on his “commitment to ex-cellence” and his “dedication to teaching, research, andprofessional service.” The dean continued, “[T]hroughyour professional service and academic outreach, youhave extended your own knowledge to enhance the livesof others, in addition to motivating your students to fol-low your lead.” At the department level, in annual eval-uations of June 2004 and again in July 2005, ProfessorVoyiadjis commended Professor van Heerden “for hiseffectiveness in obtaining national publicity for LSU’sactivities in solving hurricane-related problems.” TheLSU Office of Public Affairs touted the university’s“World-renowned Hurricane Experts”:

LSU is home to one of the largest groups of hurri-cane experts in the nation. These experts will beavailable to the media for expert comment oranalysis throughout the potentially active 2005season. LSU’s researchers are studying all aspectsof hurricanes and tropical storms as part of a com-prehensive research effort that will benefit the citi-zens of Louisiana and the entire Gulf Coast region.4

Ivor van Heerden was listed among these “hurricaneexperts,” and he was identified as “associate professor,civil and environmental engineering.”

II. Factual Background (after HurricaneKatrina)As Hurricane Katrina approached the coast of Louisianain late August 2005, both the Hurricane Center and theHurricane Public Health Center, involving faculty andgraduate students from a variety of LSU units andelsewhere, were active around the clock. Professor vanHeerden secured permission from the board of regentsto turn the public health center’s research funding to“full operational support” in the areas of its scientists’and engineers’ expertise to assist numerous federal,state, and local agencies that sought advice and supportfrom LSU’s hurricane experts. The models they pro-duced were posted on the public health center’s websiteand thus were likewise available to the press. The hurri-cane centers bumped other users from LSU’s supercom-puter to run the Advanced Circulation (ADCIRC) storm-surge models that led to calls for the evacuation of NewOrleans published in the Times-Picayune newspaperand made mandatory by Mayor Ray Nagin. Nor were thetwo centers alone in their efforts. Personnel from all overLSU with disaster resources to contribute stepped forwardto help. From Katrina’s landfall on August 29, Professorvan Heerden was in a national spotlight that LSU wasproud to share. He was given an LSU cap and T-shirt towear in media interviews, for which he was in constantdemand; an LSU tie and lapel pin were provided for hisfirst appearance on Meet the Press. Then-chancellorSean O’Keefe wrote of those early days, “Experts fromLSU’s Hurricane Center as well as researchers on campusin other disciplines provided news agencies with infor-mation and insight.”

University resources were placed at Professor vanHeerden’s disposal: on September 9, an LSU campuspolice officer escorted him and two other LSU investigatorsthrough military roadblocks for a site visit to the floodedareas of New Orleans. The Army Corps of Engineers hadbeen describing Katrina as a Category 4 hurricane, moremassive than the city’s levees had been designed to with-stand and had attributed the vast flooding to storm surgesthat “overtopped” the concrete walls of the levees, under-mining the earthen walls below. But what the LSU inves-tigators found—later confirmed by their own furthertests and by those of the other official investigativeteams—was evidence inconsistent with overtopping:debris lines below the tops of some levees and an absenceof scoured trenches on the protected sides of some levee

walls. They hypothesized that structural failure of thelevees had accounted for most of the city’s flooding andmost of its deaths. As word of these findings spread oncampus, Vice Provost Charles Wilson sent an e-mailmessage confirming a meeting to Drs. Harold Silvermanand Robert R. Twilley, respectively interim vice chancel-lor for research and graduate studies and director of theuniversity’s Wetland Biogeochemistry Institute. He wrote,“One of the issues will be Ivor; we must get him on theteam and have him change his story.”

By September 21, enough evidence had accumulatedfor Professor van Heerden to describe the flooding to theWashington Post as a “catastrophic structural failure”in a front-page article in which LSU’s Hurricane Centerfeatured prominently. LSU’s Hurricane Public HealthCenter and LSU’s Natural Systems Modeling Laboratorywere also mentioned in the article, which was picked upby other news media. By implication, the Army Corps ofEngineers—which had been charged by Congress todesign and construct a hurricane protection system forthe New Orleans area after Hurricane Betsy flooded thecity in 1965—bore responsibility for the failed levees. Itwould be nearly a year after Katrina, however, beforethe Corps would accept the responsibility laid at its feetby Professor van Heerden.

In the two weeks following the appearance of thearticle in the Washington Post, and as criticism of theArmy Corps of Engineers and the Federal EmergencyManagement Agency (FEMA) intensified nationally,the Louisiana Department of Transportation andDevelopment commissioned LSU to establish a selectgroup of academic and private-sector experts, headed byProfessor van Heerden, “to understand, first, what per-formance was expected of the Greater New Orleanshurricane protection system and, second, to identifycauses of failure as part of an effort to improve futureperformance.”3 The nine-member body of engineers andscientists, officially designated the State of LouisianaForensic Data Gathering Team, was ubiquitously knownas “Team Louisiana.” Its contract with Louisiana’stransportation department was administered by LSU’sCollege of Engineering. Professor van Heerden was calledto testify before the US Senate Committee on Homeland

5

3. Ivor Ll. van Heerden et al., The Failure of the NewOrleans Levee System during Hurricane Katrina: AReport Prepared for Secretary Johnny Bradberry,Louisiana Department of Transportation andDevelopment, Baton Rouge, Louisiana, State Project No.704-92-0022, 20 (December 18, 2006), p. i.

Security and Governmental Affairs in his official capacityas head of Team Louisiana.

In the midst of these developments, and as his mediaappearances increased, Professor van Heerden began tohave serious trouble with his administrative superiors. Aconfidential memorandum dated October 24, 2005, fromone of his senior departmental colleagues, Professor RoyK. Dokka, to Dr. Michael Ruffner, vice chancellor forcommunications and university relations, complainedthat the “image of LSU” was being damaged by “a delugeof irresponsible reports to the media being spewed” by(unnamed) non-tenure-track persons with “NO creden-tials, training, or experience in the field about whichthey opine.” The memorandum went on to predict“serious credibility, political, and perhaps, legal liabilityissues” for LSU, and Professor Dokka reports, “I havebeen in Washington several times recently meeting withthe congressional delegation and federal agencies. Inalmost every contact, I am asked how so-and-so’s irre-sponsible behavior is tolerated.” The memorandumended by opining that LSU “will remain in third-ratecategory unless the ‘cowboys’ are reined in.”

External pressures on university administrators wereapparently intense during this time. Professor RaymondB. Seed of the University of California, Berkeley, whoheaded the National Science Foundation’s investigativeteam (known as “the Berkeley team”) and who praisedthe work of Team Louisiana highly, wrote of “extremeFederal pressure” on the LSU administration beingexerted over the winter of 2005–06. He wrote that hisown university “was also approached in an inappropri-ate manner . . . but such untoward pressures were sim-ply rebuffed. That, in the end, probably goes right to theheart of what really separates a top-flight universitywith one of the top colleges of engineering in the nation(and the top-rated Department of Civil Engineering inthe nation) from a university like LSU.”4

In the week following Professor Dokka’s memoran-dum, an exchange of e-mail messages took placebetween LSU administrators and university attorneysabout Ivor van Heerden and “the image of LSU.”5 Theadministration declined to allow Professor van Heerdenthe services of an LSU attorney to assist him with his

upcoming US Senate testimony, scheduled for November2, and he was summoned to a meeting with ViceChancellor Ruffner. At that meeting, on November 11,Dr. Ruffner was joined by Interim Vice Chancellor forResearch and Graduate Studies Silverman, whose officehad financial authority for Professor van Heerden’sposition.

Summarizing what had transpired in a memorandumof understanding addressed to the two vice chancellorsfour days later, Professor van Heerden wrote, “I agreed tono longer talk to the media directly because you statedthat my talking to the media was hurting LSU’s chancesto obtain federal funds.” Responding the next day, ViceChancellor Ruffner made an about-face from LSU capsand ties, writing of Professor van Heerden’s contacts withthe media, “I do not consider any topic off limits. All Iask is that each person make it clear that opinions arenot those of LSU. It is up to each of you to insure thatmedia do not portray your opinions as those of LSU.This is your responsibility if you choose to speak withmedia.” He continued, “Also, LSU will engage in help-ing with [the] recovery of Louisiana, not in pointingblame. The chancellor has begun initiatives toward thisgoal, and it would not be useful to have the universityassociated, intentionally or not, with efforts aimed atcausation.” One such chancellor’s initiative was pub-lished that same month, produced by Dr. Ruffner’soffice: LSU in the Eye of the Storm. Although the bookconcentrates on LSU’s considerable contributions torelief efforts in the immediate aftermath of Katrina, itattributes the deaths and destruction to a “natural dis-aster,” in conflict with Team Louisiana’s findings thatthe greater number of deaths and most of the destruc-tion had resulted from man-made causes. In any event,that an administrator would instruct hurricane scien-tists not to seek causes of hurricane destruction is diffi-cult for this investigating committee to comprehend,the more so because of the explicit charge that TeamLouisiana had received from the state’s department oftransportation.

Professor van Heerden’s November 15 memorandumcontinued, “Another issue we discussed was complaintsLSU had received about me presenting myself as anengineer and talking about engineering issues. . . . Ireiterate that I have never claimed to be an engineer.”He also pointed out that he had been invited to givetalks in colleges of engineering at various universitieswhere “they did not seem to have an issue with mebeing a geologist talking about soil issues and founda-tion failures” or commenting on levees and their con-struction. According to faculty members in the CEE6

4. Professor Seed was writing to the president of theAmerican Society of Civil Engineers in October 2007regarding “New Orleans, Katrina, and the Soul of theProfession.”

5. The correspondence begins October 30 and continuesintermittently until December 20, 2005.

department, Professor van Heerden, as spokesperson fora team that included professional engineers, inevitablyreported the judgments of the engineers on his teamwhen he faulted the Army Corps of Engineers. In vain,the investigating committee reviewed scores of articlesand video clips for evidence that Professor van Heerdenhad misrepresented his training or had indicated thatthe views he expressed were those of LSU. The commit-tee’s inference is that reporters’ inaccuracies were morelikely the result of LSU’s own website search functionand its telephone book, both of which abbreviatedProfessor van Heerden’s title and identified him as amember of the CEE department faculty.6

Other subjects of the meeting, according to Professorvan Heerden’s memorandum, were the LSU administra-tion’s introduction of a requirement that he report tofive supervisors any and all contacts with the LouisianaRecovery Authority (LRA)7; that if he spoke withGovernor Kathleen Blanco or the senior members of heradministration, which they preferred that he not do,then these contacts also were to be reported to his super-visors; and that he was to decline to participate in any ofthe committees the governor was then establishing, in-cluding the Coastal Restoration and Protection Committeeon which she had already asked him and two of his col-leagues to serve. Professor van Heerden said that when heprotested the vice chancellors’ demands, he was remind-ed that his salary was paid through Dr. Silverman’soffice. Finally, the vice chancellors emphasized, andProfessor van Heerden accepted, that when he spoke to themedia or to Congress henceforth, he was doing so in hiscapacity as a citizen. It should be noted in this contextthat Governor Blanco’s administration was Democraticand that criticizing the Army Corps of Engineers, likecriticizing FEMA, was widely viewed in Louisiana as adirect attack on the national Republican administrationthen in office. While the investigating committee has

refrained from dwelling on the number of partisanpolitical remarks that feature prominently throughoutthe documentation of this case, it should be well under-stood that, in the years following Hurricane Katrina,coinciding with elections in Louisiana, political rhetoricwas intense and ubiquitous in the media. Professor vanHeerden’s assistance to the administration of GovernorBlanco and his opposition to a Republican-led “masterplan” for the state’s recovery are central to the eventschronicled in this report. It would be misleading toignore the political nature of what transpired at LSUduring those years.

In the view of this investigating committee, Professorvan Heerden’s November 11, 2005, meeting with thetwo vice chancellors marks a point at which the LSUadministration’s deliberate effort to position other facul-ty members in the roles then occupied by Professor vanHeerden became obvious.8 The administration’s plansfor a new direction envisioned close cooperation withthe Army Corps of Engineers, with its deep pockets forrecovery funding, and centered on two individuals,Dr. Twilley, director of the Wetland BiogeochemistryInstitute, and Dr. Twilley’s supervisor, Vice Chancellorfor Research and Economic Development Brooks Keel.

Having been instructed to report his contacts with thegovernor, Professor van Heerden duly notified his fivesupervisors on December 7 that he had been asked toreport to the governor’s mansion that afternoon. In hiscapacity as head of Team Louisiana, he spent severalhours assisting Governor Blanco’s preparations for con-gressional testimony. The next day Dr. Twilley, one ofthe five stipulated recipients of such notifications, wroteto the head of the state’s Office of Coastal Affairs, sayingof Professor van Heerden, “I just want the governor toknow that Ivor was not involved in our coastal restora-tion team that helped the [Corps of Engineers] developthe Chief Engineer’s report, so he does not represent thewider coastal science and engineering community. . . .We just want to make sure that the most qualified indi-viduals from higher education are providing the contextthat the science and engineering community has beendeveloping.”

Also in December 2005, Vice Chancellor Silverman,accompanied by other LSU officials, requested a meet-ing with the executive director of the LRA, AndrewKopplin, who later testified that he was told that “theyhad another expert on their faculty who was, in their

7

6. Interviewees volunteered copies of old LSU telephonebooks and internal searches. The only other member of thedepartment without an engineering PhD was ProfessorDokka, and, to his annoyance, he is likewise identified inthe press as an engineer (e.g., “Environmental EngineerSays Mississippi River Well Understood,” WAFB-9 News,March 26, 2008): deposition, pp. 62–63.

7. The LRA was established in October 2005, by execu-tive order of the governor (State of Louisiana HazardMitigation Plan Update, vol. 1, submitted to FEMA by theGovernor’s Office of Homeland Security and EmergencyPreparedness [GOHSEP], April 2008), p. 22.

8. Professor Marc Levitan did retain his position as headof the Hurricane Center until February 2009.

view, trained in levees and that Dr. van Heerden’sexpertise was not in levees but was in a different area;and they felt like the engineering and scientific back-ground of this other individual was superior and thatDr. van Heerden wasn’t qualified in that particular areaof expertise.”

Not only did the university administrators intend to puttheir own people in key positions; they simultaneouslypressured CEE department chair Voyiadjis to terminateProfessor van Heerden’s position. E-mail messages toDean Bassiouni dated December 21, 2005, and January4 and 5, 2006, detail Professor Voyiadjis’s polite stallingtactics. Acknowledging that the dean required his signa-ture “on correspondence you are preparing for the pur-pose of discharging Ivor” and agreeing to comply, henevertheless provided a positive list of Professor vanHeerden’s contributions in the first e-mail, a suggestionin the second that the terms the dean had stipulatedmight equally apply to Professor Dokka, and a request inthe third that he be given permission first to speak to alawyer and to Vice Provost Wilson. At about the same time,Professor Voyiadjis took into his confidence a senior fac-ulty member sympathetic to Professor van Heerden,Professor John Pardue, raising the more general issue ofavoiding harm to the department and mentioning thedocument he was expected to sign. Professor Parduelater testified that he had used the information to impressupon Professors van Heerden and Levitan that “the uni-versity’s dissatisfaction” had reached a new level andthat “they needed to be very aware of that and decidethen if they were going to change behavior or progressin another way.” Professor Pardue also testified that hehad heard remarks by vice chancellors indicating thatthey would terminate the van Heerden position shortly.

It seems to the investigating committee that the LSUadministration wanted first to get its ducks in a row.In January 2006, Dr. Twilley wrote confidentially toDr. Bruce A. Ebersole, chief of the Army Corps ofEngineers Flood and Storm Protection Division in itsCoastal and Hydraulics Laboratory at the Research andDevelopment Center, welcoming the establishment ofa “science-client relation to support the coastal fore-casting needs of government agencies”—work thatProfessor van Heerden had been leading since 2002.Dr. Twilley attached a draft Coastal Modeling Initiativethat he said was “being discussed at the vice-chancellorlevel of LSU.” When Dr. Ebersole replied, askingwhether he should telephone Professor van Heerden orProfessor Hassan Mashriqui, a storm-surge modelerin the LSU Hurricane Center, Dr. Twilley steered himto speak to the latter “about the skill sets necessary to8

run the ADCIRC model.” Professor Mashriqui stayedquiet about the new partnership, and Dr. Twilley toldHurricane Center Director Marc Levitan that he wasnot interested in the ADCIRC model Professor vanHeerden had used from 2002 to 2005.

During the period from 2002 to 2005, Professor vanHeerden later testified in court, “[W]e had a Web pageand we had shared our storm-surge modeling datawith state agencies, the fire chiefs in New Orleans, [and]the Louisiana Department of Transportation andDevelopment, who manages levees. We had put it up ona Web page. We had always had numerous requests frommayors [and from] chemical companies, for instance,who had hazardous chemicals on the ground and wereworried about the potential of flooding; and obviouslywe always passed [our data] on to the media. And weknow from Hurricane Katrina that the connection wehad with . . . The Times-Picayune . . . was responsiblefor many, many more people evacuating than hadoriginally intended to evacuate.” These notificationprocedures and the involvement of the press will proverelevant to events in summer 2008 and to connectionsbetween freedom of research and publication and free-dom of extramural speech.

Conflicts continued to swirl around Professor vanHeerden. Colleagues both sympathetic and unsympa-thetic told the investigating committee that they knewalready by early 2006 that the administration waspreparing for “getting rid” of Professor van Heerden.One department member described him as “a freebie tothe department,” adding that Professor van Heerdenhad done nearly everything possible to ensure his ownnonreappointment and should have taken more painsto avoid appearing partisan, especially when writingabout public policy issues. Authoring articles, thisdepartment member added, is harder than basking inthe limelight. “Engineers are elitist toward scientists,”he told the investigating committee. “It’s great hebrought all that money into the department, but Ithought he should play LSU ball or get out.” AfterKatrina, the investigating committee found, the uni-versity applied multiple pressures to ensure thatProfessor van Heerden would indeed get out.

Professor van Heerden, however, remained very muchin the public eye through the media and was a frequentsubject of blogs where complex issues were likely to beinterpreted in political terms and where partisan politicscolored the comments. After he co-authored a popularbook, published in May 2006 on the post-Katrina devas-tation, The Storm: What Went Wrong and Why duringHurricane Katrina: The Inside Story from One

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Louisiana Scientist, describing the November 2005meeting with Vice Chancellors Ruffner and Silverman,the New York Times printed “A Scientist’s Book onKatrina Draws Fire at LSU,”9 including interviews withDrs. Dokka and Ruffner, an article viewed by many asacknowledging that Professor van Heerden’s days at LSUwere numbered.10 Dr. Ruffner replied in his officialcapacity by letter to the New York Times. He claimedthat the “engineering faculty and its dean” had requestedhis and Dr. Silverman’s intervention—a claim sharplydenied by Professor van Heerden’s departmental col-leagues, who maintained that Professor Dokka’s com-plaint to the dean had been the single catalyst. Dr. Ruffneralso undermined Professor van Heerden’s credibility as aspokesperson about levees: “He is trained in geology andbotany, not civil engineering.” Professor van Heerden’sPhD is in marine sciences, and his courses in botany,appearing nowhere on his curriculum vitae, were takenas an undergraduate in South Africa. Dr. Ruffner’s letternoted that Professor van Heerden had agreed not to“speak on matters for which he has no professional cre-dentials or training,” implying that he had previouslydone so—an implication denied not only by Professorvan Heerden but also by his engineering colleagues.LSU in the Eye of the Storm, for which Dr. Ruffner

takes credit,11 casts Katrina as a natural disaster, a pointof view opposite Professor van Heerden’s contention inThe Storm that the disaster was man-made. The decla-ration Dr. Ruffner’s letter made in closing, that LSUsupports “total freedom of expression,” rang hollow tomany members of the faculty. Forty-seven scientists andother faculty members at LSU crafted a strongly wordedcriticism of Dr. Ruffner’s letter. The New York Timesdid not print it, but the Advocate did. After describingProfessor van Heerden’s credentials, the letter said, “The

attempt to muzzle a professor seems to have been moti-vated by worries that criticism of powerful men and agen-cies may jeopardize federal funding to LSU. This anxietyloses sight of what is really important, namely, thathuman error and incompetence caused a good part ofHurricane Katrina’s terrible death and destruction andthat recognizing past mistakes is necessary to avoidfuture ones.” The letter continued, “Universities have aspecial mission, even a duty, to examine and speak onall matters, especially on those that affect the public.Academic freedom means that faculty members are freeto investigate and discuss issues. . . . [A]dministrativeattempts to determine the outcome of research by intimi-dating professors tarnish the institution.”

Professor van Heerden wrote to Dr. Ruffner in self-defense, without result. Then the director of the HurricaneCenter, Professor Levitan, tried to present Dr. Ruffnerwith numerous documents to elicit a correction andapology in defense of his deputy’s bona fides. ProfessorLevitan later testified, “I took these materials [to Dr.Ruffner] to show [Professor van Heerden’s] background;I took the materials about our Center for the Study ofPublic Health Impacts of Hurricanes where Professorvan Heerden had been leading a group of twenty some-odd scientists from several campuses for—in fact since2002—to study the exact situation of a HurricaneKatrina–like storm.” The vice chancellor, he said, refusedto look at the materials and kept redirecting the conver-sation to LSU’s desire to publicize the Hurricane Center,telling Professor Levitan, as he later testified and as helater told the investigating committee, that “van Heerdenis a problem and if you guys get rid of him, the universi-ty would be much more supportive.” Professor Levitanwould remain unwilling to cooperate in the ouster of hiscolleague. The investigating committee found it ironicthat in 2006, in the midst of these postpublication epi-sodes, Professor van Heerden received an LSU book awardfor The Storm, signed by Dean Bassiouni, “in recognitionand appreciation for this scholarly publication.”

In October 2006, Professor van Heerden’s departmentchair showed him an October 2005 draft policy forresearch faculty in the College of Engineering and statedthat this document, which Professor van Heerden reportshe had not previously seen, would govern his future atLSU.12 Under the new policy, (a) Professor van Heerden

9. New York Times, May 30, 2006. The article promptedan opinion piece in the Baton Rouge Advocate on June 2that was highly critical of the LSU administration. Dr.Ruffner’s letter was published in the Times on June 7.

10. In the “Afterword” to the paperback edition of TheStorm (2007), Professor van Heerden writes that JohnSchwartz, the author of this article, “was one of the reportersplaced off-limits to me by university officials.” He also statesthat “Schwartz had used a freedom-of-information requestto obtain forty-three e-mails from LSU covering the episode.”

11. Dr. Ruffner, according to his curriculum vitae,“received national acclaim for producing LSU in theEye of the Storm . . . after Hurricane Katrina as a crisismanagement blueprint for flagship institutions.”

12. The policy, which originated pre-Katrina, on August17, 2005, was approved on November 5, 2005, by the engi-neering college’s Policy Committee, according to minutesof that meeting. The investigating committee obtained a

would no longer be permitted to teach as part of hisassigned academic duties, (b) he would be subject tofuture renewals of only one year at a time (he had beenserving on a renewable three-year contract), and (c) hisperformance would be judged exclusively on research.The college’s policy in effect when Professor van Heerdenhad first been appointed associate professor–researchhad been established in June 1990 and lightly amendedby the college policy committee in June 1996. It stipu-lated that “full-time research personnel,” explicitlyincluding research professors at all ranks, “must befunded exclusively from sources external to the univer-sity.” Thus its applicability to Professor van Heerden—like that of its successor policy—can be doubted. In anycase, the 1990 policy stated in reference to point (a),above, that “[t]he faculty in the department in whichthe adjunct appointment resides must approve . . . possible teaching responsibilities,” which had led toProfessor van Heerden’s teaching undergraduate andgraduate courses. The earlier document is silent onpoints (b) and (c). Perhaps Professor Voyiadjis haddoubts about the applicability of the new policy toProfessor van Heerden, for he made no provision for theannual reappointment evaluations required under thenew policy’s “renewal process.” Professor van Heerdenobjected sharply to his chair and to Vice ChancellorKeel, but he received a chilling reply from the latter,who told him that he planned to increase LSU’s supportof hurricane research and had appointed Dr. Twilley asan associate vice chancellor of research and economicdevelopment “to help lead these efforts at LSU.” He pro-fessed his agreement with the notion of 100 percenteffort in research for research faculty and publicationin “Science-quality journals,” adding that a researchfaculty member on “hard money” is “a very unusualcircumstance” that “we should examine across campusclosely next year.”

In late 2006 and early 2007, Chancellor O’Keefedeclined a request by a large number of Professor van

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Heerden’s supporters, among them scientists and mem-bers of the New Orleans community, to endorse theirnomination of Professor van Heerden for the 2007National Wetlands Award, presented annually to “indi-viduals who have excelled in wetlands protection,restoration, and education.” The chancellor was advisedby Vice Chancellor Keel, who wrote, “We would notwant this award to justify his potentially misguided viewof service/science. . . . [W]e need to be careful givingIvor our ‘official stamp of approval’ in light of some ofthe negative reactions he has generated.”

Team Louisiana’s final report became national newsin March 2007, renewing criticism of the Army Corps ofEngineers. Dr. Keel sent a string of links to stories in thenational media to Drs. Twilley and Silverman, askinghow the publicity surrounding “Ivor’s ‘Team Louisiana’report” would “affect our efforts.” Further e-mail corre-spondence among the administrators, their eyes on “asmuch as $350 million,” documents their continuedattempts to make sure that state and federal legislatorsand officials “know the difference between Ivor and therest of LSU.”

Professor van Heerden was asked to serve as an expertwitness in April 2007 by attorneys for the plaintiffs inKatrina-related litigation against the US governmentand the Army Corps of Engineers. In July, one of theattorneys wrote to his colleagues, copying Professor vanHeerden, “I would not be surprised if LSU fires him if hetestifies.” The attorney went on to say that he had beeninformed “several months ago” of the “possibility ofIvor being fired,” but he reported a more recentencounter as well:

Just last week I had lunch with Chancellor O’Keefe.LSU does not want Ivor or anyone else associatedwith LSU to testify against the Corps. Remember,the hierarchy with LSU now is very Republicanoriented. Also, the top fundraiser for LSU’s huge$750-million drive is former CongressmanHinson Moore. In addition, as I told you all,Chancellor O’Keefe is a well-connectedRepublican, and I am certain that LSU is con-cerned that if Ivor is identified as being adverse tothe Corps and its large corporate, pro-Republicaninterests, it could have serious adverse [e]ffectsfor LSU. . . . They just don’t want their peoplefront and center in such politically charged con-flicts, especially in a capacity that opposes thecurrent Republican regime.

Professor van Heerden was eventually able to participateas an ordinary witness, subpoenaed to testify, but not asan “expert.”

copy of Professor Voyiadjis’s October 28, 2005, memoran-dum to department faculty members with the subject line“Policy on Faculty Research Faculty” and with the draftpolicy attached. Although Professor van Heerden is listedas a recipient of the e-mail message, there is support forhis testimony that he had not seen it: the date was eightweeks after Katrina and five weeks after Hurricane Rita, amore powerful storm (Category 5) that brought renewedflooding and a second evacuation of New Orleans; TeamLouisiana was fully engaged.

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During the hurricane season of 2007, when Professorvan Heerden sought routine supercomputer priority fortracking two “disturbances” at the request of Louisiana’sEmergency Operations Center (EOC) and the statepolice, Vice Chancellor Keel replied that his newlyappointed associate vice chancellor, Dr. Twilley, wouldbe coordinating all campus requests for the emergencycommitment of computer resources. Professor vanHeerden’s request was not granted. Dr. Twilley soonestablished a comprehensive Coastal Emergency RisksAssessment (CERA) unit that excluded Professor vanHeerden. Other faculty members associated withProfessor van Heerden told the investigating committeethat being included on the CERA list did not mean theywere actually invited to participate.

Vice Chancellor Keel wrote as follows to Professor vanHeerden on August 31, 2007, copying Drs. Levitan,Voyiadjis, Bassiouni, Ruffner, and Twilley: “Ivor, myfirm recommendation is to NOT make any comments tothe press; any media inquiry should be referred to uni-versity relations; thanks.” Off campus, a concertedmedia campaign arose defending the Corps of Engineersand attacking its critics, notably Professor van Heerden,in the New Orleans press. The online affiliate of theTimes-Picayune, NOLA.com, was hit with thousands ofsuch posts purporting to be from ordinary citizens ofNew Orleans (more than seven hundred were traced in asingle six-week period in late 2008 and early 2009) thatwere in fact sent from government computers inside theCorps offices in New Orleans. The campaign continuedeven after summer 2009, when an internal review,prompted by the affidavit of a former NOLA.com em-ployee, led the Corps commander to announce that theproblem had been addressed. Meanwhile, CERA wasaggressively pursuing its partnership with the Corps.

Although the performance evaluations conducted byProfessor van Heerden’s department chair were generallypositive during this time, he was repeatedly encouragedto publish more articles in professional journals. Whensenior faculty met in early 2008 to discuss his reappoint-ment, Professor Voyiadjis “brought up the 100 percentissue,” to which some members of the faculty immedi-ately raised objections. In their view, Professor vanHeerden was being squeezed out, and the chair’s intran-sigence about the research percentage was aiding thateffort. During the faculty meeting, Professor Levitan pro-duced in evidence a copy of the van Heerden positiondescription then on file with the university’s humanresources office. The result of the meeting was an evenlydivided vote among the participating faculty, seven forrenewal and seven against. Professor Voyiadjis acknowl-

edged in an e-mail message to Professor van Heerdenthat his job description had been controversial in thereappointment meeting and, in an attached memoran-dum through the dean, set out to clarify Professor vanHeerden’s job description in CEE. He noted thatProfessor van Heerden’s “current appointment shouldreflect limited involvement in service, technology trans-fer, and outreach” but, referencing the college research-personnel policy, added, “The formal job description is100 percent research.” The statement does not appear inthe cited policy or in any other policy that has thus farcome to light. The Faculty Grievance Committee, basedon its review of the submitted documents and changes inProfessor van Heerden’s assigned duties reflected in vari-ous annual performance evaluations, found consider-able “ambiguity in the job assignment[s] on record” forhim over the course of his decade of service in the CEEdepartment.

Professor Voyiadjis decided to reappoint Professor vanHeerden, as he later testified, to “give him the benefit ofthe doubt and allow him one more year to prove hiscase.” He did so with the tacit approval of the dean(then Dr. Bassiouni, who retired at the end of that aca-demic year). By memorandum dated April 14, 2008,Professor Voyiadjis notified Professor van Heerden of therenewal of his appointment, but he conveyed the con-cern of “a number of CEE [department] faculty that youdid not demonstrate a journal publication record inyour field of specialization commensurate with yourappointment as Associate Professor–Research.” Thechair advised him that, “during the next year, my expec-tations would be that you will be active in seeking exter-nal funds for your research program and publishingpeer-reviewed archival journal publications in science orengineering journals relevant to your research areas.”Professor van Heerden told the investigating committee,however, that he was bumped from some grants as col-leagues sought to distance themselves from him underthe increasing pressure of his unlikely reappointment.

When the hurricane season of 2008 began, CERA,under Dr. Twilley, had authority for storm-surge model-ing and liaison with state officials through the newGovernor’s Office of Homeland Security and EmergencyPreparedness (GOHSEP), so Professor van Heerden, stilldenied access to the LSU supercomputer, made nopreparations to do modeling. The CERA models, howev-er, proved unreliable. Professor Levitan, director of theHurricane Center, testified that when he and the directorof the Climate Center approached Dr. Twilley to seekpermission for Professor van Heerden to be allowed inthe state’s EOC, arguing that his expertise was necessary,

“Dr. Twilley relented and agreed to let Ivor participate ifit was deemed that—if his services were requested bythe state—but [said] that he didn’t want to have any-thing to do with Ivor; he didn’t want Ivor to be in hisoffice, and [he] made some kind of comment about hemight get fired for even allowing Ivor to participate inthat limited manner.” When Hurricane Gustav cameashore (landfall September 1), CERA experienced diffi-culty with its newer ADCIRC model (an Army Corps ofEngineers–FEMA model SL15), and the EOC contactedProfessor van Heerden for help. At that point, Dr. Twilleyturned over priority control of his own smaller comput-er cluster to the Hurricane Center to run an earlierversion of the ADCIRC model that was well tested andstable, namely, the model used during Katrina and Ritathat had been refined and customized to southeastLouisiana since 2002. As Professor Levitan testified,“In operations, you don’t go with the state-of-the-artresearch model that takes a long time and may becranky, and may or may not work. You go with themodel potentially that’s working and running—andyou can get results fast.” Power outages in Baton Rougedisrupted the model runs, however, and help came froma Hurricane Center research associate driving backfrom New York who found a hotel offering high-speedInternet access and ran the successful models fromthere. Hurricane Ike hit Louisiana only twelve days later(landfall September 13), but CERA had announced thatit would not be making model runs, so Professor vanHeerden was again asked by the governor’s office to runsurge models and provide advice. Receiving additionalrequests from the state police and the Sea Grant CoastalAdvisor, among others, he posted his data on the web,with the governor’s thanks. Dr. Twilley, however, orderedhim to remove them, and he did.

Dr. Twilley had forbidden the dissemination of dataon the web (which had been standard procedure at theLSU Hurricane Center from 2002 to 2005), asserting, ashe told the press, that the display of conflicting modelsconfused the public.13 He added that the NationalWeather Service (NWS) had formally reprimanded LSUfor the public release of information that should havegone only to GOHSEP. Because this latter remark couldrefer only to Professor van Heerden’s posting after Ike,Professor van Heerden wrote to officials at the NWSand the National Oceanographic and AtmosphericAdministration (NOAA) in an effort to track down thereprimand. Bill Read, director of NOAA’s Tropical

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Prediction Center, replied, “We have neither the desirenor reason to be dictating what other institutions candistribute via the Web. In fact, I encourage other entitiesinvolved in hurricane work to make data available, asyou all likely have information we are not aware of.”

Professor van Heerden’s 2009 evaluation for reap-pointment began, as in 2008, with his submission ofmaterials. Before consideration of his record began,however, he was summoned to an April 9 meeting withInterim Dean of Engineering W. David Constant. Alsopresent were one of the engineering college’s associatedeans, Dr. Warren Waggenspack, and Professor vanHeerden’s faculty adviser, Professor Charles Delzell.Professor van Heerden was notified orally, as well as bya letter handed to him dated April 3, that he was beingissued a terminal appointment for the 2009–10 aca-demic year. Dean Constant’s decision not to reappointProfessor van Heerden, the reasons for which he de-clined to state, preceded by nearly a month the meet-ings of the department’s senior faculty on April 27and May 4, at which further review and a vote onProfessor van Heerden’s reappointment were to occur.Irregularities, discussed in detail below in the “Issues”section of this report, included the chair’s decision tohold the senior faculty meetings at all, given the previ-ously issued notice of nonreappointment and thedean’s unexpected presence at the department meeting.Discussion is said to have been minimal. By a vote ofeight to four, with four abstentions, the departmentfaculty recommended against Professor van Heerden’sreappointment.

Professor van Heerden learned only from press reportsthat he was also being removed as deputy director of theHurricane Center, effective one month later, and wasnot told the reasons for that decision either. The griev-ance committee was later to “note in passing that Dr.van Heerden was not granted the common courtesy ofan official notice stating that he had been terminated asdeputy director of the Hurricane Center and would nolonger receive the $4,000 salary supplement for thatposition.”

On May 21, Chancellor Martin received a petitionfrom more than four thousand New Orleans residentsasking him to reconsider the action against Professorvan Heerden. No response came from anyone in the LSUadministration.

At the end of September, Professor van Heerden’slawyers filed a grievance on his behalf with the FacultyGrievance Committee, a standing committee of the LSUFaculty Senate, alleging that inadequate considerationhad been given to his qualifications, that the adverse13. Times-Picayune, September 20, 2008.

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reappointment decision was retaliatory and resulted insignificant part from considerations that violated hisacademic freedom, and that he had a claim to the pro-tections of tenure by virtue of the nature and length ofhis full-time service at the university, which, notwith-standing his title, involved duties that were never limitedto research.

In its December 18, 2009, report on Professor vanHeerden’s grievance, the faculty committee addressed,among other matters, his complaint of retaliation andviolation of academic freedom. After citing the applica-ble provisions relating to academic freedom as set forthin the bylaws and regulations of the LSU board, thereport “reaffirms the rights of academic freedom asspecified [in the board’s policies] . . . as fundamental foran academic staff member. [The committee] stronglysupports and advocates the rights of an academic staffmember to investigate, publish, and state his or her find-ings. The committee notes that the appearance of chas-tising freedom of expression is not to the university’sbenefit.” The committee went on to find that “the griev-ant provides extensive documentation in support of thiscomplaint, with several exhibits. However, the committeefeels it does not have the resource base to investigate oraddress a grievance of this magnitude.” In short,although the committee acknowledged having receivedan abundance of evidence supporting Professor vanHeerden’s allegation (and elsewhere in its report found a“serious breach of normal procedure” in the assessmentof his academic performance and described the evalua-tion process as “biased” and “compromised”), it declinedto carry out an investigation of the evidence because thecomplaint was “beyond [its] capability and resources toaddress.” (Its declining to do so and its likewise havingcited a lack of “expertise or resources” as a basis for de-clining to reach a judgment on Professor van Heerden’sclaim to de facto tenure will be discussed below, in thisreport’s treatment of the issues presented by this case.)The grievance committee reiterated in its report that itwould not take exception to the department’s negativeevaluation of Professor van Heerden’s academic per-formance, since it lacked the authority to render asubstantive judgment on the merits of a candidate forreappointment.

The administration took no action in the case afterthe grievance committee issued its report, and there wereno subsequent communications between the administra-tion and the committee with respect to that body’s find-ings and conclusions.

On February 10, 2010, Professor van Heerden’s lawyersfiled a wrongful termination lawsuit in Louisiana state

court alleging that LSU officials had conducted a“multi-year campaign of retaliatory harassment”against him, culminating in its termination of his serv-ices because of his role as a whistleblower in publiclycriticizing the Army Corps of Engineers for levee failuresin the wake of Hurricane Katrina. Named as defendantsin the lawsuit were the LSU Board of Supervisors andfour LSU administrative officers: then–Vice ChancellorKeel, Associate Vice Chancellor Twilley, then–interimengineering dean Constant; and CEE department chairVoyiadjis. The defendants subsequently removed the caseto federal court, where it remains under judicial review.

III. The Association’s InvolvementThe national Association first became involved in thevan Heerden case in early April 2009, soon after pressreports appeared about the administration’s actionagainst him. The staff, concerned about the potentialimplications of his situation for principles of academicfreedom, conveyed its interest in the case to his support-ers and to the president of the local AAUP chapter. InJune, one of Professor van Heerden’s attorneys forwardedto the staff a large binder of documents relating to hisappointment history at LSU, his activities and publishedstatements pre- and post-Katrina, and the reactions,both intramural and extramural, to those activities andstatements. The staff awaited the results of the LSUgrievance process before it wrote to the administrationabout the Association’s concerns. In its initial letter toChancellor Martin dated January 28, 2010, the staffpointed out that, under Association-supported standards,Professor van Heerden was completing his twelfth full-time year at LSU when notified that his services werebeing terminated and thus, based on the length of hisservice, should have been afforded the safeguards of aca-demic due process that accrue with tenure.

As for the findings in the grievance committee’sreport, particularly with regard to his allegation of viola-tion of academic freedom, the staff wrote that, “with theLSU faculty committee’s having declined to take a posi-tion on whether Professor van Heerden’s evidence calledfor a formal hearing, it appears that the serious chargeshe has made thus far stand unrebutted.” The letterurged that the notification of nonretention be rescinded.

The administration did not respond to the staff’sJanuary 28 letter or to follow-up letters sent on February25 and March 11, by which time Professor van Heerdenhad filed suit. On April 5, the Association’s general secre-tary authorized an investigation. Outside counsel to theuniversity, responding by letter dated June 2, stated thatthe pendency of litigation prevented the administration

from cooperating with the investigation. The Association’sstaff subsequently received the transcripts of the May2010 court hearing on the litigation with the testimonyof key administrative officers on their activities in thecase, some by deposition. Several of the documents thatwere admitted as evidence had been obtained byFreedom of Information Act media requests.

The Association’s undersigned investigating com-mittee, having examined the extensive availabledocumentation, traveled to Baton Rouge on August 26,2010, stayed for three nights on the LSU campus, anddevoted two days to interviews with members of the LSUfaculty who had knowledge of the events in the case ofProfessor van Heerden or that of the separate case ofProfessor Dominique Homberger. The committee isgrateful to all those who were willing to come forwardand is disappointed that the administration declined toparticipate.

IV. Issues in the Case of Professor van HeerdenAnalyzed here are what appear to the investigating com-mittee to be the central issues raised by the LSU admin-istration’s actions to terminate the services of ProfessorIvor van Heerden. The analysis is based on availabledocumentary information, supplemented by interviewswith members of the LSU faculty and additional conver-sations, correspondence, transcripts, and news accounts.The standards considered by the committee in assessingthe issues are those set forth in the joint 1940 Statementof Principles on Academic Freedom and Tenure,derivative Association-supported documents, and officialLSU policies.

A. ACADEMIC DUE PROCESS IN PROFESSOR VAN HEERDEN’S CASE1. His Right under the 1940 Statement of Principles tothe Protections of TenureDuring his years of LSU service, Professor van Heerdenwas not considered for tenure. The LSU System’s Ranks,Provisions, and Policies Governing Appointmentsand Promotions of the Academic Staff, as adopted in2002, had defined his position (associate professor–research) as not tenure-eligible, and LSU, Baton Rouge,in its applicable local policy statement (PS-36) neededto be consistent with this determination. Professor vanHeerden was eligible, however, to apply for promotionand was also eligible to apply for a vacancy in thetenure system when one occurred, but members of theCEE department interviewed by the Association’s investi-gating committee said of the latter possibility that thedepartment preferred candidates with doctorates inengineering, not in marine sciences, and candidates14

who would publish in core engineering journals. Manyof Professor van Heerden’s publications were technicaland government reports, as well as articles thatappeared in public-policy journals.

The 1940 Statement of Principles calls for a proba-tionary period for full-time faculty not to exceed sevenyears, after which “teachers or investigators shouldhave permanent or continuous tenure, and their servicesshould be terminated only for adequate cause.” Thus,faculty members whose full-time service has exceededseven years should be protected by the safeguards ofacademic due process that accrue with tenure in anyaction to terminate their services. Leaving aside earlygrant-funded appointments, Professor van Heerden hadbeen a full-time associate professor at LSU for twelveyears, nine of them in the College of Engineering’sDepartment of Civil and Environmental Engineering,when he was told that his appointment would not berenewed. For all of that time, he was paid from stategeneral funds and his position description covered thethree traditional areas of teaching, research, and serv-ice, in all of which he participated.14 The investigatingcommittee thus finds that under the 1940 Statement ofPrinciples he should have been afforded the protectionsof tenure in the action taken against retaining him.

2. His Status at LSU as a Research ProfessorProfessor van Heerden’s actual status was affected by hischair’s determination that his position was exclusivelyin research. Perhaps it is not unreasonable to supposethat a faculty member with “research” in his title wouldbe evaluated at 100 percent research. Not unreasonable,but incorrect by LSU System rules, according to which aresearch professor’s “primary responsibility is conduct-ing research”—not his sole responsibility, as ProfessorVoyiadjis insisted annually. Moreover, under strictobservance of LSU System rules, “research” would nothave been part of Professor van Heerden’s title becausehe was state-funded and had long ago exceeded thestatutory limit for term appointments. According to thepolicy statement on research ranks (PM-23), “Onlyindividuals whose primary responsibility is conductingresearch or extension education and who often are paidfrom grant or contract funds are to be appointed to

14. At the time he left LSU, Professor van Heerden wasstill on the committees of graduate students completingtheir degrees. His undergraduate course, however, was acasualty of the 2005 policy that forbade his teachingexcept on his own time.

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these ranks.” Professor van Heerden’s position descrip-tion from 1993 to 1998 assigned 35 percent of his time tore-search and from 1998 to 2010 assigned 30 percent toresearch, so the policy should not have applied to him.15

The investigating committee questions using a term fromhis title as dispositive against the position description forhis rank.

The investigating committee noted, too, that ProfessorVoyiadjis had apparently made no attempt over the yearsto secure a revision of Professor van Heerden’s positiondescription. As to Professor Voyiadjis’s claim that researchfaculty are required to spend 100 percent of their time onresearch, in court testimony he cited PS-36 as the sourceof the 100 percent research requirement, but PS-36 has nosuch requirement. On the contrary, PS-36, in its “Criteriafor Evaluating Faculty Job Performance,” stipulates thatthe “weight to be accorded each [area] will be consis-tent with the mission of the department and with thefaculty member’s job duties and work assignments.”But Professor van Heerden’s official duties remainedunchanged from 2000 to 2010, while Professor Voyiadjisevaluated only his research. Further, Professor Voyiadjismade comments in all the areas of effort every year,applauding and commending Professor van Heerden’swork in each of these three areas while, as he said, eval-uating only research. He testified that he found thequantity of publications in professional engineeringjournals “below par,” but that “funding and other con-siderations” increased his research assessment, which wasidentical to his overall assessment. Moreover, ProfessorVoyiadjis’s nomination of Professor van Heerden to thegraduate faculty lists his work assignment as 20 percentteaching, 30 percent research, and 50 percent adminis-tration. After Professor van Heerden’s appointment to athree-year term as an associate member of the graduatefaculty in 2004, Professor Voyiadjis wrote in 2005, “Heshould set a goal of becoming a full member of theGraduate Faculty”; and in 2006, “He also needs to becomea member of the Graduate Faculty,” although full mem-bership was restricted to tenure-system faculty members.These comments from his chair establish both that theteaching of graduate students was a part of what thechair deemed a “100 percent research” appointment andthat Professor van Heerden should, in the chair’s view,have sought a tenure-system position.

A further provision of PM-23 was overlooked by thosewho sought to hold Professor van Heerden to it: “If anindividual in one of these ranks is temporarily switchedfrom grant or contract funds to permanent funds, thattime does not count toward tenure unless specificallyapproved through channels by the President” (emphasisin original). Professor van Heerden was permanentlyswitched to state general funds in 1997. One reading ofthe provision is that, were he to have applied for atenure-system position, he would have had tenureimmediately because of his accrual of thirteen years’service on permanent funds. Another is that PM-23could not be fairly applied to Professor van Heerden atall, regardless of his title. It is difficult to escape the con-clusion that LSU System rules were being arbitrarily orselectively—and surely inconsistently—applied.

The second internal document cited as pertinent toProfessor van Heerden’s status is PS-36. Its descriptionof scholarship encompasses many examples that, inProfessor van Heerden’s position description, are listed aseither program development or technical assistance tostate and federal agencies; one might argue that some80 percent of his assignment (all but instruction) wouldbe research by that measure, making him appear moresubject to the provisions of PM-23 and PS-36. Such anargument, however, would fly in the face of his chair’sunderstanding of research. Repeatedly, the chair’s annu-al evaluations noted the extent to which Professor vanHeerden was successful in publishing in “refereedarchival journals.” One of the members of the depart-ment defended what he regarded as the department’shigh standard for research, telling the investigatingcommittee that research in engineering “needs to beheavy on equations—equations, that’s what they wantto see.”

The AAUP’s position on the status of a researcherholding academic rank dates back to 1969. Its Reportof the Special Committee on Academic PersonnelIneligible for Tenure, approved that year by theAssociation’s Committee A on Academic Freedom andTenure, states that “[w]henever academic institutionsdesignate full-time researchers as faculty members,either by formal appointment or by conferring the titlesof instructor, assistant or associate professor, or profes-sor, those researchers should have all the rights of otherfaculty members, and . . . the AAUP should apply the1940 Statement of Principles to them as strictly as toanyone else.”

In its concluding statement, the special committeeoffered the following as “definitions of acceptable aca-demic practice in American colleges and universities”:

15. For example, PM-23 designates the title AssociateProfessor–Professional Practice for those whose primaryresponsibility is teaching, service, fieldwork, and supervis-ing students in the field.

1. The academic freedom of all teachers andinvestigators with full-time or part-time appoint-ments in a university should have the full protec-tion of the Association.

2. Full-time teachers and investigators who areappointed to the rank of instructor, assistant pro-fessor, associate professor, and professor shouldhave the rights and privileges appropriate to theirrank, including tenure or the eligibility for tenureafter the appropriate probationary period.When a new policy for research faculty in the College

of Engineering was approved in November 2005,changing Professor van Heerden’s conditions of servicefrom three-year to one-year appointments, he hadalready served more than eight years in a full-timefaculty position, more than five in the CEE depart-ment. The LSU System policy, as adopted in 2002,specifies that associate professors who are not paidfrom grant or contract funds hold appointments carry-ing indefinite tenure.

In sum, Professor van Heerden had a professorialrank, and his position was funded through the statebudget. Over his decade of full-time service on the LSUfaculty, the position descriptions and other documentsrelating to his appointment referred to a variety ofduties that he carried out. While the LSU administrationhas maintained that his official position was alwaysdesignated as “100 percent research,” the investigatingcommittee believes that either the claim is false or“research” is so broad a term as to cover most ofProfessor van Heerden’s professional activities. Thecommittee finds that designating Associate Professorvan Heerden as a researcher did not invalidate his claimunder the 1940 Statement, by the time of his removalfrom LSU’s full-time faculty, to the safeguards of aca-demic due process that accrue with tenure.

3. The Procedures Followed in Terminating His ServicesLSU’s procedures for handling matters involving reap-pointment that were in effect at the time of Professor vanHeerden’s appointment to the full-time faculty require,as a first step, that the dean notify “all chairs of the sub-mission timetable for reappointment/nonreappointmentrecommendations.” Candidates are to be notified of eli-gibility for reappointment and afforded opportunity tosubmit a dossier with supporting documentation for thereappointment file. The second step involves review bythe department and its formulation of a recommenda-tion. The department chair is responsible for ensuringthat all pertinent materials are available to the eligiblevoting faculty members, who meet to vote on the candi-16

date and provide the chair with an advisory report, towhich the candidate “may prepare a formal letter ofresponse for inclusion with the reappointment file sub-mitted for review beyond the department.” The dean willthen “review and make reappointment recommenda-tions” following consideration of the recommendationby the departmental faculty. For associate professors andprofessors, when nonreappointment is recommended, “aconference with the dean will be held in a timely manner.At the conference, the candidate will receive a writtenstatement outlining reasons for her/his recommendation.”

Professor van Heerden’s reappointment review inspring 2008 appears to have been carried out largely inaccordance with the above cited procedures except forthe controversy over the existing job description as com-pared with the chair’s expectation of 100 percentresearch. Not so in 2009.

Although the “30 percent research” portion of theposition description says “basic and applied research,” avery large part of Professor van Heerden’s other responsi-bilities fell under LSU’s description of scholarship. As amatter of principle in any discipline, the weight to begiven to various aspects of a faculty member’s research isa judgment call, the prerogative of the chair, the seniorfaculty, and the peer-review process. According to theAssociation’s Statement on Government of Colleges andUniversities, “scholars in a particular field or activityhave the chief competence for judging the work of theircolleagues.” The investigating committee neverthelessnotes that three things made the value of Professor vanHeerden’s work vulnerable to existing divisions withinthe discipline of civil and environmental engineering: hisapplied research, his science doctorate, and his govern-ment reports and publications bearing on public policy.Until the controversy following Katrina, all his work hadbeen welcome as covered by “the particular nature ofhis appointment with its emphasis on advisory andtechnology-transfer activity,” in the words of the 2003review. Whether Professor van Heerden’s research was infact constrained following the imposition of the 100 per-cent rule in April 2008, considered separately below,depends on the extent to which his activities counted asapplied research. For more than a decade Professor vanHeerden had been heavily involved in technology trans-fer and public policy—consistent with his actual jobdescription—making himself available to governmentbodies and publishing technical reports as well as articlesin public-policy venues. Professor Voyiadjis’s memoran-dum of April 14, 2008, quoted above, advised Professorvan Heerden that he should abandon a great part ofwhat he had originally been appointed to accomplish

and a great part of the commitment proclaimed in thecollege’s mission statement of 2004.

The investigating committee faults the decision-making process as it was carried out in this case. Theinterim dean offered no plausible explanation in hiscourt deposition for interfering in the department’s re-view of research faculty or for his rendering a decisionon Professor van Heerden’s appointment status beforethe department met to discuss the record. DeanConstant’s testimony and that of Professor Voyiadjiswere in agreement that the chair was not consultedbefore the decision was made.

Two members of the review panel performing thedepartment’s reappointment evaluations told the inves-tigating committee that the assessment of Professorvan Heerden’s record had not begun when word wasreceived that the dean had already acted to terminate theposition, effective one year hence. Professor Voyiadjisnevertheless called a meeting to discuss Professor vanHeerden. At the beginning of the meeting, according tothose who attended, Professor Voyiadjis was asked, “Whyare we doing this?” He replied that the Office of HumanResource Management required it. The Faculty GrievanceCommittee reported that when it asked ProfessorVoyiadjis “about the purpose of the faculty annual eval-uation subsequent to the dean’s nonrenewal notice, [he]replied that it was to provide feedback to Dr. van Heerdento help in getting his next job.” He later testified thatthe meeting was held because the process of review wasalready in motion and needed to be concluded—testimony contradicted by the testimony of ProfessorLevitan, a member of the department’s Promotion andTenure Committee.

The process also was adversely affected by the pres-ence of Interim Dean Constant at the meeting of seniorfaculty—a fact that particularly exercised the FacultyGrievance Committee, which remarked in its report thatthe dean’s “presence tainted the proceedings” and was“intimidating to the attending faculty and a seriousbreach of normal procedure,” concluding that “[a]nyresults obtained under such conditions cannot beconsidered unbiased.” The investigating committeeconcurs.

Further, the investigating committee shares the con-cern of the grievance committee about the fairness of aprocess in which a dean, whose powers extend overevery member of the department, fails to recuse himselfat the departmental level. His attendance was widely(and unsurprisingly) perceived as intimidating. It canbe argued that Dean Constant’s presence was irrelevantto the outcome of Professor van Heerden’s case because

the matter had already been decided when the depart-ment met, but the investigating committee gained theimpression both from court testimony by administratorsand from faculty interviews that the LSU administrationfeared further backlash from the faculty and the public.

Another procedural issue related to the decision inProfessor van Heerden’s case concerns the matter ofproviding him with the reasons for that decision. TheAssociation’s Statement on Procedural Standards inthe Renewal or Nonrenewal of Faculty Appointmentscalls for providing reasons upon request, and applicablepolicies at LSU also call for the affordance of a writtenstatement of reasons in cases of nonreappointment.During the April 9, 2010, meeting in the dean’s office atwhich he was notified of the decision to issue him a ter-minal appointment, Professor van Heerden reports thedean’s having refused his repeated requests to reveal thereasons for that decision, telling him only that it was“not performance-related.” According to the December18 report of the faculty grievance committee, the dean’sexplanation was that the LSU requirement regardingreasons was for performance-related evaluations andthat the van Heerden nonrenewal involved a positionthat would not be refilled. Professor van Heerden, how-ever, reports the interim dean as having told him thatthe funds for the position would stay with the College ofEngineering.

In the court proceedings, Associate Dean WarrenWaggenspack testified that the “core mission” of LSU isteaching, that teaching was not a part of Professor vanHeerden’s official responsibilities as a research associateprofessor, and that accordingly Professor van Heerdenwas not contributing to that mission. The associatedean’s description of the mission of the university,however, does not conform with LSU’s official missionstatement.16

With regard to the testimony of Interim Dean Constantand Associate Deans Waggenspack and Kelly A. Ruschthat the decision was based on budgetary constraints,the judge who presided over the May 2010 proceedingson Professor van Heerden’s motion for a preliminary

17

16. “As the flagship institution of the state, the vision ofLouisiana State University is to be a leading research-extensive university, challenging undergraduate and grad-uate students to achieve the highest levels of intellectualand personal development. Designated as a land-, sea-,and space-grant institution, the mission of Louisiana StateUniversity is the generation, preservation, dissemination,and application of knowledge and cultivation of the arts.”

injunction wrote, “Although it became obvious thatthese witnesses disliked Dr. van Heerden and handledhis termination in a very unprofessional manner, theCourt found their testimony credible as to the reasonsgiven for terminating him.” If the decision did resultfrom budgetary concerns and involved no performance-related issues, the dean could simply have informedhim of that fact at the time. One explanation for thisreticence was offered in the court testimony of AssociateDean Waggenspack. He stated that “when Dr. Constantdidn’t give him a reason for the nonrenewal, [Professorvan Heerden] made what I viewed as a threat to have[CNN’s] Anderson Cooper show up at the doorstep toask questions. Once a threat is made, I’m not going toparticipate in the conversation.” Professor van Heerdenhimself testified that he had made a statement aboutCNN because he “foresaw that there would be a mediaflurry.”

With respect to the financial grounds for the actionagainst Professor van Heerden, as of this writing,Louisiana and particularly public higher educationthroughout the state, including LSU, are facing genuineand severe financial difficulties. However, at the time ofthe van Heerden decision, prior to April 2009, the situa-tion did not appear so dire. Members of the CEE depart-ment had not been aware of budgetary constraints. Theyreport that the budgets for the year before and the yearafter the van Heerden decision were the same. It shouldalso be noted that, throughout most of his time on theLSU faculty, Professor van Heerden had been bringingin substantial outside grants to the university to supportthe research and related activities in which he andothers were engaged.

Dean Constant stated in his court deposition of May2010 that the decision not to reappoint Professor vanHeerden was his to make, that no other administrativeofficers influenced his decision, and, as previouslynoted, that the decision was motivated solely by theneed to eliminate Professor van Heerden’s position inorder to meet mandated budgetary constraints and notby performance-related considerations. The interimdean’s statement can be questioned because of state-ments and developments subsequent to the van Heerdendecision. In August 2009, the new engineering dean,Dr. Richard Koubek, announced seven priorities, theseventh of which was “the development of a 3-yearbudget process that will be used to inform the collegedecision making as we face budget cuts and/or surplus-es in the future.” Members of the CEE department toldthe investigating committee that the budget had notbeen reduced the following year, and departmental con-

versations about how to absorb anticipated future budg-et cuts began only after Professor van Heerden wasgone. Department members added that budget-cuttingwas still in the “exercise stage” (in August 2010, wheninterviews with them were held) because theAccreditation Board for Engineering and Technologyoffered a degree of protection that other colleges did nothave. Members of the department described as false theallegations of administrators that if Professor vanHeerden had not been released, someone else wouldhave had to be dropped. Interim Dean Constant testifiedthat not retaining Professor van Heerden, who was enti-tled to a year of notice and would be paid another yearof salary, “didn’t have anything to do with the upcom-ing budget” but was influenced by concerns aboutbudgets of later years. Associate Dean Waggenspack hadtestified similarly at the injunction hearing. There wasno impact on later college budgets, however, because,as Professor Voyiadjis testified in June 2011, funds forDr. van Heerden’s position reverted back to the office ofthe vice chancellor for research and development.Finally, the appointments of other research professorswhose LSU service in the department was shorter thanthat of Professor van Heerden were renewed.17 Financialconsiderations, the investigating committee came tobelieve, were not a significant factor in the administra-tion’s decision against retaining Ivor van Heerden.

B. RAMIFICATIONS FOR ACADEMIC FREEDOM IN THE DECISIONAGAINST REAPPOINTING PROFESSOR VAN HEERDENUnable to accept the repeated assertions of administra-tive officers that the decision to terminate Professor vanHeerden’s services was motivated by financial con-straints rather than performance considerations, theinvestigating committee has assessed his allegations ofretaliation and violation of his academic freedom.

1. Freedom to Dissent from an Administration’sPosition without Suffering RetaliationThe “Academic Freedom” section of the 1940 Statementof Principles on Academic Freedom and Tenure

18

17. According to the court testimony of ProfessorLevitan, “when Professor van Heerden’s termination wasannounced, we hadn’t finished our performance review ofany of the [department’s] three or four research profes-sors.” Asked whether any of the other research professorsreceived notices of nonreappointment, he responded, “Notto my knowledge.” He also expressed his belief that noneof them had been at LSU as long as Professor van Heerden.

begins with the premise that “[t]eachers are entitled tofull freedom in research and in the publication of theresults, subject to the adequate performance of theirother academic duties.” The section goes on to refer tocollege and university faculty members as “citizens,members of a learned profession, and officers of aneducational institution.” The Association has consis-tently maintained that in this last capacity a professorshould have the academic freedom to speak outresponsibly against administration policies and actions,especially on issues of high public importance and cer-tainly on issues within the professor’s area of academic competence.

The evidence already noted in this report of hostilityfrom LSU administrators to Professor van Heerden’s pub-lic opposition to their position on post-Katrina floodingis abundant. The investigating committee, unimpressedby the administration’s stated reasons for its decisionnot to retain him, has no doubt that the decision was toa significant extent in retaliation for his opposition.

As asserted in the Association’s 1994 statement On theRelationship of Faculty Governance to AcademicFreedom, faculty members have the right under prin-ciples of academic freedom to communicate their views“on matters having to do with their institution and itspolicies” and “on issues of public interest generally,”and they have this right “even if their views are in con-flict with one or another received wisdom.” WhenProfessor van Heerden complained to the FacultyGrievance Committee that the decision against retain-ing him was retaliatory and in violation of his academicfreedom, that body, as stated earlier, acknowledged inits response that academic freedom is crucial for amember of the academic staff and that the evidencesupporting the van Heerden allegation was abundant.The grievance committee declined, however, to reachformal findings on the matter, stating that it lacked“the resource base to investigate or address a grievanceof this magnitude.”

The investigating committee asked the grievancecommittee chair, Professor Pratul Ajmera, why his com-mittee had stopped short of an explicit assessment of theissue and what resource base had been lacking. Hereplied that requested documents had been suppliedreadily and that all the witnesses had been cooperativebut that his committee believed some aspects of the caserequired judgments of law and the committee had nomeans of consulting with attorneys. He added that anumber of people named in the grievance were nolonger at LSU, thus preventing a full examination of allthe disputed facts. The investigating committee suggests

that the grievance committee members were perhapsoverly modest in thinking that they needed counselfrom an attorney at law in order to issue a formal find-ing on whether the administration had violatedProfessor van Heerden’s academic freedom by denyinghim retention in retaliation for his continuing dissentfrom the prevailing LSU position on post-Katrina flood-ing. This investigating committee does not hesitate initself reaching a finding that the LSU administration’saction against Professor van Heerden, largely if notentirely because of his dissent, violated his academicfreedom.

2. Freedom to Engage in the Research of One’s ChoosingInterim Dean Constant insisted in his court testimonythat Professor van Heerden had criticized the failed lev-ees and resulting New Orleans flooding not in his offi-cial capacity on the faculty as a researcher but rather inhis capacity as a private citizen. Whether he did so as aprivate citizen (the investigating committee has arguedto the contrary) or as an academic citizen or more nar-rowly as a researcher, administrative actions in defininghis research responsibilities had a negative impact onhis academic freedom to determine the kind of researchhe chose to do.

Professor van Heerden argues that his freedom as aresearcher was constrained when Professor Voyiadjis, hischair, following his reappointment review in 2008, de-fined the focus of his research and urged him to publishmore peer-reviewed scientific papers: “If [you are] reap-pointed, the emphasis of your research during the up-coming year is intended to be in the broadly defined areasof coastal and hurricane science and engineering, naturaldisaster response and mitigation, natural systems man-agement and engineering, and coastal restoration con-sistent with your research qualifications. This researchemphasis may change from appointment period to ap-pointment period, depending on the research needs ofthe Department and the College of Engineering.” Theclear implication of his chair’s concluding sentence isthat Professor van Heerden’s research areas were to bedetermined by the department and college on a year-by-year basis—a severe restriction for any scientist accus-tomed for decades to determining his own research pri-orities. The list of research possibilities is broad, andmuch of it is taken from Professor van Heerden’s cur-riculum vitae, as Professor Voyiadjis later testified.Throughout his career at LSU, Professor van Heerdenhad not only studied natural-disaster responses andmitigation; he had also participated in those activities,and his participation—as was true in the case of 19

Hurricane Katrina—sometimes led to new avenues ofresearch. Although Professor Voyiadjis may well havebeen calling for the only research emphases possible topreserve Professor van Heerden’s slender chance ofremaining on the LSU faculty, the investigating com-mittee finds that the restriction he imposed constituteda constraint on Professor van Heerden’s academic free-dom as a senior research scientist to decide his researchpriorities. 3. Freedom to Engage in Extramural UtterancesThe 1940 Statement of Principles carries anInterpretive Comment, adopted that same year, sayingthat a college or university administration which“believes that the extramural utterances of [a facultymember] have been such as to raise grave doubts con-cerning the teacher’s fitness for his or her position . . .may proceed to file charges. . . . In pressing suchcharges, the administration should remember thatteachers are citizens and should be accorded the free-dom of citizens. In such cases the administration mustassume full responsibility, and the American Associationof University Professors and the Association of AmericanColleges are free to make an investigation.”

The Association’s Committee A in 1964 approved anamplified Statement on Extramural Utterances,which includes the following provisions:

The controlling principle is that a faculty mem-ber’s expression of opinion as a citizen cannotconstitute grounds for dismissal unless it clearlydemonstrates the faculty member’s unfitness forhis or her position. Extramural utterances rarelybear upon the faculty member’s fitness for theposition. Moreover, a final decision should takeinto account the faculty member’s entire recordas a teacher and scholar. In the absence ofweighty evidence of unfitness, the administrationshould not prefer charges; and if it is not clearlyproved in the hearing that the faculty member isunfit to continue, the faculty committee shouldmake a finding in favor of the faculty memberconcerned. Under the policies of the LSU System, academic free-

dom “includes the right of a member of the academicstaff of the University System to exercise in speaking,writing, and action outside the University the ordinaryrights of a citizen.” The LSU policies, reiterating a cau-tion included in the 1940 Statement of Principles, alsostate that “when a member of the academic staff is notofficially designated to represent the University System,the staff member must indicate clearly that he or she isspeaking as an individual citizen.”

The activities Professor van Heerden undertook andthe statements he made that attracted controversy wereso much a part of his normal academic duties—andan extension in order to meet the extraordinary demandsrelated to Hurricane Katrina—that the boundarybetween freedom of research and publication and free-dom of extramural speech is more difficult to establishthan it usually is. Even his contact with the journalisticworld, often a hallmark of extramural expression, iscomplicated by the role of the media during disastersand other emergencies when both notification of dangerand evacuation often depend on swift and broad mediacoverage. A crucial responsibility of LSU’s HurricaneCenter had been to monitor changing conditions andmake them publicly available via its website, especiallyto governments at all levels, state police, emergencyresponders, chemical industries, and the press, but thatresponsibility had, by 2008, been taken away, passed tothe CERA group with its different interpretation of itsresponsibility. The investigating committee was led tothe view that the LSU administration wanted to have itboth ways with Professor van Heerden: to dress him inLSU garb and champion his media appearances whenthe content of his statements was agreeable, but subse-quently to attack him in print while cutting off hisaccess to the media when it disapproved of the content.

When the LSU administrative officers came to disap-prove of Professor van Heerden’s utterances and wantedto keep them as distant from the university as possible,they referred to those utterances as the external activi-ties of a citizen. The investigating committee isunaware, however, of instances in which Professor vanHeerden was accused of falsely indicating that he wasspeaking for LSU and not simply as an individual.

The investigating committee finds abundant reasonto believe that the LSU administration acted againstProfessor van Heerden out of displeasure with, and inretaliation for, his extramural whistle-blowing activitywith regard to the Army Corps of Engineers and thefailed New Orleans levees. Although the Corps ofEngineers itself eventually admitted responsibility forlevee failures, the LSU administration feared loss of therevenue controlled by the Corps (see section A.2 above).The investigating committee finds that the administra-tion acted in this regard, too, for reasons that violatedProfessor van Heerden’s academic freedom, again hav-ing it both ways: it denied that the nonreappointmentdecision was “performance related,” yet both openlyand covertly it maligned his scientific work and misrep-resented his professional qualifications while publiclyaccusing him of misrepresentation. 20

V. Conclusions1. The administration of Louisiana State University,

Baton Rouge, acted in disregard of the 1940 Statement ofPrinciples on Academic Freedom and Tenure, whichaffords the protections of tenure to full-time faculty mem-bers after seven years of service, when it removed ProfessorIvor van Heerden from the LSU faculty after seventeen yearsof service without having afforded him those protections.

2. The LSU administration’s designation of Professorvan Heerden as a researcher did not invalidate his rightto the protections of academic due process that accruewith tenure.

3. The administration’s claim to the contrary notwith-standing, financial constraints were not a significant fac-tor in its decision against retaining Professor van Heerden.

4. The administration decided not to retain Professorvan Heerden largely in retaliation for his continuingdissent from the prevailing LSU position on the failedlevees and the New Orleans flooding, thereby violatinghis academic freedom.

5. The administration, by imposing a restriction onthe nature of the research to be done by Professor vanHeerden, constrained his academic freedom as a seniorresearch scientist to determine his own researchpriorities.

6. The administration, in acting against Professorvan Heerden out of displeasure with his position onthe reason for the flooding, violated his academic

freedom also for exercising his extramural rights as acitizen.18

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18. Mr. Richard F. Zimmerman Jr., counsel for the lawfirm representing the LSU Board of Supervisors and theindividually named defendants in the litigation initiatedby Professor van Heerden, responded to a draft text of thisreport in behalf of Chancellor Martin and six other admin-istrative officers whose comments were solicited. He referredto earlier correspondence stating that the administrationwould not cooperate with the investigation because of thelawsuit, and he stated that the investigating committee,having decided to move forward nonetheless, had “receivedonly one side of the story.” He expressed the belief that thereport “contains numerous factual inaccuracies” but stat-ed that, because the professor has chosen to litigate, “wewill address Dr. van Heerden’s claims in the Federal Courtand will not comment directly” on the inaccuracies.

“We believe,” LSU counsel further stated, “that theCourt which employs an adversarial structured process,will be in the best position to reach a correct result as tothe facts and the law. Please be advised that our failure tospecifically ad-dress those matters here should not be con-strued as agreement with or acquiescence in the purportedfactual interpretations or conclusions of the draft report.In fact, we fully disagree with all conclusions stated in thedraft report.”

I. Factual BackgroundProfessor Homberger, who received her MS degree inbiology and her PhD in zoology, both from the Universityof Zurich, is a biologist specializing in the areas of func-tional, ecological, and evolutionary morphology. She hastaught at LSU since 1979. In the spring 2010 semester,she taught one section of the introductory-level biologycourse for nonmajors. On March 25, while ProfessorHomberger was administering the second examination ofthe semester to approximately 170 students, Dr. Kevin R.Carman, dean of the College of Science, sent her an e-mail message: “I have recently been made aware of thedeveloping situation regarding student grades in yourBIOL 1001, Section 4 class. After consultation withdepartmental leadership and with Academic Affairs, Ihave concluded that it is in the best interest of the stu-

dents to relieve you of your teaching duties in BIOL1001 . . . effectively immediately.” Professor Hombergerthen discovered that she had been locked out of her sec-tion’s course-management web page.

Professor Homberger had agreed “to pitch in for thedepartment” by teaching a section of the course afterreceiving a request early in the fall semester from theassociate chair for undergraduate studies, who wasseeking “an experienced instructor in BIOL 1001.” Shehad immediately written to the course coordinator,Professor E. William Wischusen, requesting sample syl-labi and the textbook for BIOL 1001. She added, “Iwould like to have permission to experiment with someteaching approaches that have proven effective in myclasses,” giving as examples interactive lectures, shortdaily quizzes formatted like her examinations, required

The Case of Professor Dominique G. Homberger

readings, and lectures on independent topics not repeat-ing the textbook. At that time, Professor Wischusen hadbeen encouraging: “What you suggest fits very well.”

All sections of BIOL 1001 use the same textbook and,according to the department’s bylaws, an associate chairfor introductory biology, then Professor Wischusen, hasresponsibility for “coordinating instructors of freshmancourses,” though the instructors are given some leewayin the development of course content and assessment.Just how much leeway becomes an issue in this case.Professor Homberger had continued to consult withProfessor Wischusen during the planning and develop-ment of the course, explaining her reasoning forvarious decisions; their pedagogical theories differed,but each had cooperated in making suggestions andoffering explanations to the other. As media dissectionof her teaching methods was to reveal in the followingweeks, absent from Professor Homberger’s courses aredevices popular with students such as extra credit, curvedgrading, and “cram” sheets; instead, quizzes (multiplechoice with ten options, discouraging mere guesswork)cover both readings and lectures, and assessment iscomprehensive, including the final examination. Oncethe course had begun, Professor Wischusen had accessto Professor Homberger’s course web page, so he couldsee the assignments, quizzes, and examinations as wellas the many links to current films and articles that shewas using.

Professor Homberger has a reputation for settinghigh standards—a source of disharmony with some ofher colleagues over the years that surfaced in the mediafollowing her removal from her class. One told theundersigned investigating committee that ProfessorHomberger should meet with education experts because,although her goals are worthy, “there are better ways ofachieving them these days.” Professor Wischusen, too,had suggested that Professor Homberger engage an edu-cation specialist, and she had done so, though her sus-pension precluded the specialist’s scheduled class visit.But Professor Homberger has a record of commendationfor teaching excellence going back at least to 2004,including praise in her annual reviews for her “rigorousapproach,” “careful mentoring,” and “demandingcoursework,” providing a glimpse of her theory of edu-cation. Annual reviews comment further on her “out-standing” and “very strong” teaching evaluations,sometimes placing her “in the top category of all facul-ty.” The impressive record, however, was earned in theteaching of upper-level courses; the spring of 2010found her teaching at the introductory level for the firsttime since 1995.

The class average on Professor Homberger’s first test,given on February 18, had been 53 percent. As ProfessorHomberger later wrote, “It is not uncommon at LSUthat a single initial test in a science course serves as awake-up call for students to study harder to earn a satis-factory final grade for the course.” Perhaps so, but theinvestigating committee was told that BIOL 1001 hadlong enjoyed a reputation as the easy option amongintroductory LSU science courses. Professor Wischusen,reacting to the results of the first examination, had writ-ten to Professor Homberger, “I think it would be veryhelpful for the average from this first exam to end up inthe 60’s.” She had not complied with his suggestion buthad continued her efforts to ignite interest in biologyand to encourage her students to learn better studyhabits, with the result that quiz grades rose sharply fol-lowing the examination. When she had posted midtermgrades, strongly skewed to grades of D and F, ProfessorHomberger had sent a message to the students remind-ing them, with illustrative tables, “that even in theworst-case scenario . . . low grades at mid-term are stillrecoverable.”

Professor Wischusen, having meanwhile seen theas-yet-unposted grades on March 12 in his capacity ascourse manager with control of the entire site, had aseries of meetings and e-mail exchanges with ProfessorHomberger that he describes as “focused on her exami-nation and ways that she might improve her nextexam.” He understood her to say that “she was going tochange her approach to assessing her students,” butProfessor Homberger did not share that understanding.Professor Wischusen told the Faculty GrievanceCommittee that Professor Homberger’s quiz questionsand exams were similar in “disproportionately testingfactual knowledge and not general concepts,” but shedisagreed. Professor Wischusen and the departmentchair, Professor Marcia Newcomer, consulted with DeanCarman on March 22. In the thirteen days before thedean acted to suspend Professor Homberger, no onesought an explanation from her about the midtermgrades. On the contrary, as of March 23, ProfessorWischusen was still e-mailing Professor Homberger withsample quiz questions, and he reviewed her secondexamination on March 24, the day before the suspen-sion. In sum, prior to her sudden suspension and lock-out, Professor Homberger was not consulted about, norwas she informed of, the administration’s decision. Nomember of the biology faculty and no one involved inthe decision to remove her had ever sat in on her class.Moreover, no students had filed (or later filed) appealsof their grades with Professor Wischusen, though, he22

said, “several students did inquire about appealing theirgrades.” No students had complained about ProfessorHomberger to either the chair or the dean. According topress accounts, complaints had been aired in class,though students had disagreed among themselvesabout what an introductory course ought to demand ofthem. When Professor Wischusen replaced ProfessorHomberger, he added twenty-five points to each stu-dent’s grade on the first examination before allowingher access to the web page to enter grades for the secondexamination.

In his own view, though this view apparently was notaccepted by the Faculty Grievance Committee, ProfessorWischusen “was the instructor of record for the courseand now the faculty member with responsibility forgrading as outlined in PS-44. As such, I made anadjustment to the grades for the first exam that Ithought was appropriate. I had reviewed the questionsfrom the first exam prior to making this adjustment.”

Upon receiving Dean Carman’s e-mail message sus-pending her, Professor Homberger requested that hereconsider his decision “for the moment” to hear herside of the story. He replied, “By all means we shouldvisit, but my decision stands.” Her chair was less blunt:“I know you have worked very hard to develop your newcourse, and I have heard your lectures are excellent. Ihave greatly appreciated the fact that you were willingto take on teaching 1001. I will be teaching 1201 in thefall, and I am anxious to talk with you about currenttopics that you incorporated into your lectures. However,the midterm grade distribution in 1001-4 is a seriouswarning sign that cannot be ignored. I am sorry thisaction had to be taken.” The fact that no one mentionedany cause other than grade distribution for the suspensionshould be noted because the rationale given by variousadministrative officers involved in the matter kept shift-ing its focus until it reached its final form in mid-April.

If the course coordinator, chair, and dean were infact responding to the grade distribution, then theyacted precipitately: they had misinterpreted the“anomalous” data before them. In particular, they hadfailed to attend to a crucial implication of ProfessorHomberger’s assessment policy: unlike policies in othersections of the course, the midterm grade in her sectionrepresented only 27 percent of the final grade. Oncedetails of her summary dismissal from teaching BIOL1001 became public, Professor Homberger was able toexplain her view, already shared with her students, thatthe gradual compilation of points gives students time tomaster vital study skills that are often new to them andthat her policy works together with a comprehensive

final examination to reward improvement in thecourse. The campus newspaper, the Daily Reveille,reported on April 13 that the class average hadimproved markedly on the second examination, con-firming her expectation and undermining the grade-distribution complaint. Similarly undercutting thegrade-distribution justification for suspension were datafrom ten multisection lecture courses between 2005 and2009, analyzed by the Chronicle of Higher Educationand published on May 16, showing broad disparitiesamong the sections in some disciplines and “almostidentical grade distributions” in others. By that date, thethorny topics of grade inflation and lowered standardsin higher education had been raised in editorial andcomment sections of the online media covering theHomberger story, and public opinion had appeared tomove decidedly to the side of the ousted professor.

Issues of academic freedom were clearly at stake.Interviewed on April 13 by Baton Rouge’s Advocate,Dean Carman said, “I had to balance academic free-dom with the need to protect the students.” He toldthe Daily Reveille much the same thing that day:“Academic freedom is valued but has to be weighedagainst the interest of the students, so I made the deci-sion I felt was best for the students.” When the storybroke nationally the following day, the dean issued astatement through LSU’s public relations office: “LSUtakes academic freedom very seriously, but it takes theneeds of its students seriously as well. . . . The extremenature of the grading raised a concern, and we felt itwas important to take some action to ensure that ourstudents receive a rigorous, but fair, education.” Thedean’s office did not respond to follow-up questions. Noteveryone who mentioned academic freedom favored it.A member of Professor Homberger’s department wroteto the Chronicle of Higher Education, “This talk about‘academic freedom’ is nauseating. It does not apply towhat one teaches in core-curriculum courses. LSU stu-dents should worship at the altar of Dean Carman.” Inthe midst of the media coverage, however, the adminis-tration began offering a new but related explanation forits actions: student retention.

By May 16, when the Chronicle ran several articleson Professor Homberger’s suspension, including aninterview with Dean Carman, the focus had shifted:

The Chronicle: Ms. Homberger says her stu-dents’ grades would have improved by the end ofthe semester. At the midterm, they had taken onlyone of the semester’s three major tests. On thesecond exam, which was given the day she wassuspended from the course, the students did at 23

least moderately better. Why didn’t you wait to seehow things played out?

Dean Carman: Certainly the grades could haveimproved. But, again, many students had alreadyleft. The attrition rate was so out of the norm thatI thought we needed to take action. It isn’t justabout the grades. The grades were a concern. Butthe attrition rate was what really worried us. If the real worry was student retention, Professor

Homberger deserved to be told so. Neither the dean norher chair mentioned it at the time, though in separatestatements both took “full responsibility” for the sus-pension. Her chair said later, “We often cited her highDFW rate—as in D’s F’s and Withdrawal. Retention isimplicit in the DFW statistic.” The same issue of theChronicle included an analysis of attrition in LSU’sintroductory science courses for fall 2009, noting that“three sections of introductory chemistry had withdraw-al rates higher than 28 percent. So did four sections ofcalculus and three sections of introductory economics.”Professor Homberger’s attrition rate, at the time of hersuspension, was 24 percent, so why did the Chroniclemake 28 percent its cutoff point? Because Dean Carmanhad overstated her attrition rate as 27.8 percent in hisApril 13 interview with the Daily Reveille.

Finding the administration’s publicly stated groundsfor Professor Homberger’s removal to have been con-siderably weakened by the evidence, the investigatingcommittee followed another lead in its attempt todetermine what had prompted the suspension of along-standing member of the tenured faculty. The com-mittee was told that animosity in the biology depart-ment was of many years’ duration and often entangledstudents. Months after the investigating committee’svisit to campus, the LSU Faculty Senate meeting ofDecember 8 that was to address possible changes toLSU’s policy on student grades (PS-44) deteriorated atone point into a shouting match of accusations overwhether Professor Homberger had been “mobbed forfifteen years” by colleagues in her department who hadseen their chance to discredit her through the BIOL1001 imbroglio.19 The department chair, ProfessorNewcomer, had indicated departmental antagonismwhen she wrote to Professor Homberger on April 22,“Now I know you are a woman of conviction, and Irespect your convictions. I also knew that if I went totalk to you about the anomalous grade distribution, we

would not be able to come to a compromise. Also, I ama person who, unfortunately, avoids conflict.” At the endof the same e-mail message, Professor Newcomerstated, “I apologize for not coming to talk to you aboutthis beforehand.” Dean Carman told the Chronicle onApril 27, “If I had to do this again, I would have metwith Professor Homberger before I gave her the notice,as a professional courtesy.” That the chair and dean,a month later, remained unwilling to acknowledgeProfessor Homberger’s right to assign grades in hercourses and to be heard on the matter before beingremoved was disturbing to the investigating committee,though perhaps not surprising.

On April 16, Professor Homberger filed a grievancewith the Faculty Grievance Committee, amending it onApril 26. Her complaints to the grievance committeewere summarized as follows in that body’s subsequentreport:

A. Relieving Dr. Homberger of her teachingduties because of the grade assignment in herclass violates a core tenet of academic freedom inthe classroom.

B. University policy on the assignment of gradeswas ignored.

C. Dr. Homberger was not accorded due processor even the courtesy of a conference with theChair or the Dean prior to being relieved of herteaching duties.

D. “Relieving” Dr. Homberger of her teachingduties is tantamount to “suspension,” which hasextremely negative implications.

E. Changing an assigned grade without aninstructor’s knowledge or consent, and withoutan academic appeals procedure, is in violation ofan instructor’s rights and of due process. . . . It isalso a violation of integrity in grade assignment.Among the grievance committee’s unanimously

adopted “Findings and Recommendations,” deliveredMay 21, were the following:

[A]dministrative intervention in this case occurredtoo hastily. Such intervention encroaches on aca-demic freedom, threatening an instructor’s rightto exercise his or her pedagogical approaches inthe classroom. Administrative intervention shouldoccur rarely, be undertaken reluctantly, and takeplace only in extreme situations and after allother options have been exhausted.

Since issues of integrity in the assignment ofgrades are at the core of an academic institution’smission, the Committee recommends that theUniversity develop policies that (1) delineate24 19. A videotape of the meeting is available on the LSU

website at http://www.lsu.edu/senate/meeting%20videos.html.

situations under which administrative interven-tion in the middle of a course might be appropri-ate; (2) specify due process for such an action;(3) identify those rare situations when it might beappropriate for someone other than the originalinstructor to assign a course grade; and (4) deter-mine whether such a person should be allowed tochange grades on a test that he or she neitherprepared nor administered.

Making a decision to suspend a member of thefaculty from a course on the basis of grade distri-bution, without consulting the faculty memberinvolved, is inappropriate. Due process mustafford faculty members an opportunity to explaintheir actions and, if necessary, an opportunity tocorrect the situation. The Committee concludesthat Dr. Homberger was not granted either oppor-tunity and deserves a written apology.

The Committee also recommends that, asspecified in her addendum, the University assureDr. Homberger that no retaliatory or prejudicialaction will be taken against her arising from thisgrievance.Executive Vice Chancellor and Provost Astrid Merget,

who was about to leave office, did not respond to thefindings and recommendations of the grievance com-mittee or to Professor Homberger’s June 29 request“that the recommendations that were contained in the. . . committee’s report be implemented and actedupon.” On July 8, Professor Homberger made a similarrequest of the new provost, Dr. John Maxwell Hamilton,who responded by memorandum of July 14. He accept-ed some of the committee’s recommendations but didnot address others. He noted that the Faculty Senatewas “developing an improved policy” in the area ofgrading. Dean Carman wrote to Professor Hombergeron July 19, noting that he had been prompted to do soby the provost’s inference that the dean’s apology hadalready been delivered. “However,” the dean wrote,“while I have stated publicly . . . that I should havemet with you in person to inform you of my decision,I have not communicated that regret directly to you. Ido indeed apologize for not meeting with you in personto inform you of the action being taken, and I regretthat I did not extend this professional courtesy to you.”Thus his apology remained limited to regret for nothaving met with Professor Homberger to tell her he wasremoving her from the course. He did not address theother issues raised in the grievance committee’s report.

Professor Homberger’s suspension has implicationsfor teaching at LSU more generally. Professor Brooks

Ellwood, president of the LSU AAUP chapter, told InsideHigher Ed that, in his own field, geology, where stu-dents may be upset by what is taught about the actualage of the earth or by evolution, the suspension of atenured professor casts a pall, showing that “studentscan complain” and have a professor removed. “If youare a nontenured professor at this university, you haveto think very seriously about whether you are goingto fail too many students for the administration totolerate.”

In examining the various claims and counterclaimsin the case, the investigating committee found thatwhat was initially described by both the departmentchair (“the midterm grade distribution in 1001-4 is aserious warning sign that cannot be ignored”) and thedean (“the mid-term grades were so anomalous that Ireally had no choice”) as a problem with midtermgrade distributions relative to other sections of thesame course, underwent a metamorphosis into claimsabout student retention rates. The clearer it becamethat Professor Homberger had acted both in the interestof her students’ education in biology and also wellwithin the ambit of the protections supposed to be pro-vided under principles of academic freedom, the morethe administrative officers attempted to justify theiractions. To the investigating committee, the risinggroundswell of support from current and former stu-dents, editorial writers, and academics across thecountry makes the cognizant administrators’ failure toapologize inexplicable.

As to the national Association’s involvement inProfessor Homberger’s case, the AAUP’s staff firstbecame aware of her situation on March 30, 2010,when LSU chapter president Ellwood informed theWashington Office of it. In subsequent days ProfessorHomberger herself provided the staff with details aswell as key documents. The situation also attractedconsiderable local and national press attention. Thestaff offered advice and assistance to Professor Hombergerand encouraged her to pursue an intramuralgrievance.

At a previously scheduled meeting to discuss thefurther course of AAUP action in the van Heerden case,the staff also discussed the case of Professor Homberger.In its April 5 letter to Chancellor Martin, notifying himthat an investigation into the van Heerden case hadbeen authorized, the staff wrote as follows:

In addition to its charge relating to the van Heerdencase, the ad hoc committee may be asked to ad-dress another case at Louisiana State University if itremains unresolved. The case, which just recently 25

came to our attention, involves Dr. Dominique G.Homberger, a tenured professor in the Departmentof Biological Sciences. She reports having beensummarily removed from teaching a course aftercomplaints about the distribution of grades shehad assigned in that course—grades that werechanged by someone else after a new instructortook over the class. This Association has consistent-ly viewed an instructor’s authority in assigningparticular grades to be a direct corollary of the“freedom in the classroom” ensured by the 1940Statement of Principles on Academic Freedomand Tenure.As it did with respect to the van Heerden case, the ad-

ministration declined to respond to the staff’s initialinquiry about the Homberger case and to subsequentcommunications about it. With the issues posed by hercase remaining largely unaddressed by the administra-tion even after the Faculty Hearing Committee hadsupported the key aspects of her complaint, this investi-gating committee was charged with inquiring into hercase as well.

Immediately before and during its visit to BatonRouge, members of the investigating committee spokewith Professor Homberger and other LSU faculty mem-bers knowledgeable about her case. Despite the unwill-ingness of the chancellor and other administrativeofficers at LSU to meet with it when it was on campusor to respond to the AAUP’s inquiries about this case,the investigating committee, as with the van Heerdencase, considered the available documentation, supple-mented by faculty interviews and news accounts, asproviding sufficient information to assess the issues ofconcern posed, to make findings, and to reach theconclusions that follow.

II. Issues in the Case of Professor HombergerThe investigating committee’s analysis of the issuesraised by the Homberger case, like its assessment of theissues posed by Professor van Heerden’s case, is based onthe standards set forth in the 1940 Statement ofPrinciples, in derivative AAUP policy documents andreports, and in official LSU policies.

Two issues, in particular, occupied the investigatingcommittee.

A. ACADEMIC FREEDOM IN ASSIGNING STUDENT GRADESThe Association’s 1997 statement The Assignment ofCourse Grades and Student Appeals sets forth generalguidelines “concerning the right of instructors to assigncourse grades to students, the right of students to

challenge the assigned grades, and the circumstancesand procedures under which student appeals should bemade.” With respect to the right of an instructor toassign grades, this document provides as follows:

The Association’s Statement on Government ofColleges and Universities places primary responsi-bility with the faculty “for such fundamental areasas curriculum, subject matter, and methods ofinstruction.” The assessment of student academicperformance, it follows, including the assignmentof particular grades, is a faculty responsibility.Recognizing the authority of the instructor ofrecord to evaluate the academic performance ofstudents enrolled in a course he or she is teachingis a direct corollary of the instructor’s “freedomin the classroom” which the 1940 Statement ofPrinciples on Academic Freedom and Tenureassures. The faculty member offering the course,it follows, should be responsible for the evalua-tion of student course work and, under normalcircumstances, is the sole judge of the gradesreceived by the students in that course.

As for the right of a student to appeal a grade, the 1997document states:

According to the Association’s Statement onProfessional Ethics, “professors make every rea-sonable effort . . . to ensure that their evaluationsof students reflect each student’s true merit.”The academic community proceeds under thestrong presumption that the instructor’s evalua-tions are authoritative. At the same time, ofcourse, situations do arise in which a studentalleges that a grade he or she has received iswrong, and the Joint Statement on Rights andFreedoms of Students provides that “studentsshould have protection through orderly proce-dures against prejudiced or capricious academicevaluation.” A suitable mechanism for appeal,one which respects both the prerogatives ofinstructors and the rights of students in thisregard, should thus be available for reviewingallegations that inappropriate criteria were usedin determining the grade or that the instructordid not adhere to stated procedures or gradingstandards.

Under no circumstances should administrativeofficers on their own authority substitute theirjudgment for that of the faculty concerning theassignment of a grade. The review of a studentcomplaint over a grade should be by faculty,under procedures adopted by faculty, and any26

resulting change in a grade should be by facultyauthorization.20

The LSU Faculty Handbook states, in PS-44, that“[t]he instructor’s assignment of a grade is final, andthe grade may not be changed or altered except throughthe academic appeals procedure, following appropriateinvestigations.” This regulation was ignored in the caseof Professor Homberger. PS-44 also states, “It is theright and responsibility of the instructor in a course todetermine and assign the grade for each student beyondthe final date for withdrawing with a W. Individualinstructors are expected to assign grades equitably andconsistently in accordance with the standards estab-lished by the faculties of the various colleges andschools. There is no ‘University curve’ or other table ofnumerical equivalents of letter grades to which a facultymember must adhere.”

The Faculty Grievance Committee commented on theFaculty Handbook and PS-44 policies, on their appli-cation to the situation involving Professor Homberger,and on her allegation that the dean’s action in reliev-ing her of her teaching duties because of her gradeassignments violated a basic principle of academicfreedom in the classroom. With regard to removing herfrom the course, the grievance committee observed asfollows:

Dr. Homberger was not removed from her teach-ing duties because of the course content, the qual-ity of the course, or her teaching performance.Rather, the decision was made solely on the basisof mid-semester grade distribution. It is clear thatthe mid-semester grade distribution was out of linewith expectations (compared with the other sectionsof BIOL 1001 for the same semester, as well aswith historical distributions) and that there werea substantial number of student withdrawals. As noted above, the grievance committee found that

the administration’s intervention “occurred too hastily”and that “such intervention encroaches on academicfreedom, threatening an instructor’s right to exercise hisor her pedagogical approaches in the classroom.” Thegrievance committee had more to say on the subject ofgrading policies:

Existing University policies, such as those ofPS-44 and the Faculty Handbook, implicitlyrefer to the final semester grade assignment, andthe procedure for grade appeals described in theGeneral Catalog also applies to final grades. Thisraises the question: under what circumstances,if any, can administrators intervene in an ongo-ing course because of grade assignment? Suchaction impinges on the ability of instructors toevaluate their own students, which violates theinstructor’s freedom to use his or her ownpedagogical method of teaching and testing. Atwhat point has an instructor hopelessly crossed aline during a semester to a degree so grave thatit justifies administrative intervention? Anyadministrative action that leaves open an arbi-trary threat of intervention in a course during asemester impinges on a teacher’s pedagogicalfreedom.Although the investigating committee does not doubt

that the Association’s recommended standards withrespect to grading apply not only to final grades butalso to grades assigned while a course is in progress,the Faculty Grievance Committee judged that PS-44had not been adequately prescriptive on that point andshould be clarified. PS-44 aside, the investigating com-mittee finds that the changing of Professor Homberger’sgrades, unfair to her and to her students, was a viola-tion of her right to assign grades and, moreover, aviolation of her academic freedom to teach.

In the aftermath of Professor Homberger’s suspen-sion and grievance, Professor James V. Moroney tookover as chair of the Department of Biological Sciencesin summer 2010 upon the completion of ProfessorNewcomer’s term. Additional pressures were thenbrought to bear on Professor Homberger, purportedlybecause of the department’s financial problems. Shereports having been told on July 22 to retain and pass apercentage of students in her classes that reflected thedepartment’s percentage in 3000- and 4000-levelcourses and being informed that her course in compar-ative anatomy could not be offered any longer if shedid not comply. When she asked for an explanation ofthe percentages with which she was expected to comply,Professor Moroney replied by e-mail message the fol-lowing day: “Here are the grade distributions I referredto yesterday that you asked to see. The average DFW[grades of D, F, and withdrawal] rate for BIOL was14.4 percent.” He added later that day, “The 14.4percent DFW rate is for 3000/4000 level BIOL courses.Please keep in mind that this is an average rate for all 27

20. For a further discussion of the Association’s policieson grading and academic freedom in particular cases seeAcademic Freedom and Tenure: Nicholls State University(Louisiana) (2008) and Academic Freedom and Tenure:Benedict College (South Carolina), A SupplementaryReport on a Censured Administration (2005).

of our 3000/4000 level courses over the past 4–5 years.Some courses will be below this average and someabove the average.”

The investigating committee sees such expectationsof an instructor as in clear disregard of the statementin PS-44 that LSU has “no ‘University curve’ or othertable of numerical equivalents of letter grades to whicha faculty member must adhere.” Moreover, the com-mittee is sensitive to the possibility that the pressuresregarding Professor Homberger’s comparative anatomycourse were part of a pattern of retaliation that shecontends she has been enduring. Provost Hamiltonhad written on July 14, “We assure Dr. Homberger thatno retaliatory nor prejudicial action will be takenagainst her due to filing this grievance,” and ProfessorNewcomer that same day signed Professor Homberger’ssharply negative performance evaluation for calendaryear 2009—an abrupt turnabout from the run of posi-tive evaluations she had been receiving for many years.Professor Newcomer criticized, in particular, low en-rollments and retention rates in Professor Homberger’scomparative anatomy course. Professor Hombergertook exception to her chair’s evaluation, despite itsoverall assessment of satisfactory. “I can only con-clude,” she wrote, “that this evaluation is in retalia-tion for the fiasco that the department and college suf-fered as a result of the public outcry at the local andnational levels when I was removed from my teachingBIOL 1001 in the spring of 2010.” She added, “Irequest that the chair’s evaluation be revised toacknowledge truthfully my contributions to teaching,research, and service, as well as the impediments thathave been thrown in my path.” Professor Newcomercomplied with a corrected evaluation.

The impediments to which her letter of exceptionrefers included a number of interventions with studentsby college counselors, some of her colleagues, and atleast one associate dean of the college aimed at dis-couraging students from taking her courses or workingwith her and at encouraging students to drop hercourses when confronted with early low test scores.Because such activity had been going on for some yearsbefore Professor Homberger’s suspension, the investi-gating committee is not persuaded that it constitutesretaliation, but the committee does consider it mani-festly unfair if those who criticize Professor Homberger’sattrition rates actively contribute to them.

Professor Homberger deserves not only the apologieswhich the Faculty Grievance Committee agreed wereowed to her but also robust protection against anyretaliation that is occurring.

B. ACADEMIC DUE PROCESSUnder Regulation 7a of the Association’s RecommendedInstitutional Regulations on Academic Freedom andTenure, the administration may impose a severe sanc-tion on a faculty member, “such as suspension fromservice for a stated period,” only after affordance of anadjudicative hearing of record before an elected body offaculty peers. Regulation 5 of that document sets forththe procedures to be followed in such a hearing. It iscontrary to Association-supported standards of academicdue process for an administration to impose a severesanction without first having demonstrated adequacy ofcause. LSU’s regulations are silent on this matter. At theFaculty Senate meeting held on April 13, 2010, at whichthe resolution was introduced concerning “A FacultyMember’s Right to Assign Grades,” Faculty GrievanceCommittee chair Pratul Ajmera suggested that the reso-lution be amended to add that “we further resolve thatwe create a subcommittee to create a process/proceduregoverning suspension of faculty members from teach-ing.” From the perspective of the Association, havingsuch a procedure is crucial.

In its 1972 report Academic Freedom and Tenure:Armstrong State College (Georgia), an AAUP investi-gating committee remarked that “[t]he enforced sepa-ration of a teacher from his classroom . . . is an actionof severity, to be taken only for serious and pressingreasons, with significant professional damage to theindividual’s future in teaching.” In a 2008 report onThe Use and Abuse of Faculty Suspensions, a sub-committee of the AAUP’s Committee A on AcademicFreedom and Tenure observed, “Historically, suspensionhas been regarded in Association policy as a severesanction second only to dismissal, because it has beenseen primarily in terms of removal of a faculty memberfrom teaching. As one case report put it, ‘Barring ateacher from his classroom inflicts ignominy upon theteacher and is destructive to the morale of the academiccommunity.’” The subcommittee further noted that“increasingly the Association is dealing with cases thatinvolve partial suspensions, in which the faculty mem-ber is blocked from some duties . . . , but not others. . . .Removal from even a single class can, of course, poseserious complications for the faculty member’s standingas a teacher.” It goes on to express concern that

[w]hether a suspension is partial or total, . . . inmany cases administrations . . . do not seem, orcare, to grasp the severe effects that suspensioncan have, not only on the reputation—andmorale—of an accused faculty member, butalso on his or her ability to contest the intended28

sanction. Suspension usually implies an extreme-ly negative judgment, for which the basis remainsuntested in the absence of a hearing . . . [whichwould afford] the individual . . . a chance ofclearing his or her name. Beyond that, suspensionmay create a prejudicial atmosphere totally out ofproportion to the alleged offense and undeservedin the light of the professor’s previous record.The Faculty Grievance Committee in the Homberger

case raised concerns about the abruptness of the dean’sintervention, recommending that new guidelines bedeveloped as to when, if ever, such interventions shouldtake place. With respect to Professor Homberger’s com-plaint that she had been denied due process, the griev-ance committee expressed its agreement with her: “Thata decision of this magnitude—relieving an instructorof her duties in the middle of the semester for a matterinvolving grades—could be made by the chair or thedean without a prior meeting to hear Dr. Homberger’sexplanation is inexcusable.” The investigating commit-tee believes that nothing short of an adjudicative hear-ing of record can protect an accused faculty membersuch as Professor Homberger from arbitrary or capri-cious decisions. It finds that, in not affording ProfessorHomberger a full hearing on her suspension, it deniedher the basic protections of academic due process.

The grievance committee concurred with ProfessorHomberger’s complaint that the dean’s action in sus-pending her from teaching duties “has negative impli-cations to the point of inflicting ignominy on the personsuspended.” The immediate and widespread condemna-tion of the dean’s action in the media, especially fromfaculty members and students across the nation, sug-gests to the investigating committee that ignominy inthe matter has been inflicted on the dean and the otherswith administrative responsibility in LSU’s College ofScience. It is now a matter of public record that atenured professor was suspended summarily and thatthe suspension was not revoked. Moreover, the investi-gating committee finds it much to be regretted that noapology has been proffered to Professor Homberger thataddresses the simple injustice of her suspension.

III. Conclusions1. The administration of Louisiana State University,

Baton Rouge, violated Professor Dominique Homberger’sright to assign student grades and, in peremptorilyremoving her from a course that was in progress, violat-ed the provisions in the 1940 Statement of Principleson Academic Freedom and Tenure ensuring a facultymember’s freedom to teach.

2. In imposing the severe sanction of suspension onProfessor Homberger without having afforded opportu-nity for a faculty hearing in which it would demonstratecause for its action, the LSU, Baton Rouge, administra-tion denied her the basic protections of academic dueprocess as set forth in Regulation 7a of the Association’sRecommended Institutional Regulations onAcademic Freedom and Tenure.

3. That no apology has been provided to ProfessorHomberger by the LSU, Baton Rouge, administrativeofficers responsible for the injustice of her suspension ismuch to be regretted.21

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DEBRA NAILS (Philosophy)Michigan State University, Chair

ABBAS AMINMANSOUR (Architecture)University of Illinois at Urbana-Champaign

CHARLES R. FIGLEY (Social Work)Tulane University

Investigating Committee

Committee A on Academic Freedom and Tenure hasby vote authorized publication of this report on theAAUP website and in the Bulletin of the AmericanAssociation of University Professors.

Chair: DAVID M. RABBAN (Law),University of Texas at Austin

Members: MICHAEL F. BÉRUBÉ (English), PennsylvaniaState University; SHELDON KRIMSKY (BiomedicalEthics and Science Policy), Tufts University;DAVID MONTGOMERY (History), Yale University;

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21. Associate Vice Chancellor for Human ResourceManagement A. G. Monaco, responding to a draft text ofthis report, stated that Professor Homberger, as noted inthe report, “filed a grievance with the Faculty Senate whichthen conducted an internal investigation. As a result oftheir findings, a list of final recommendations was provid-ed to the LSU administration. Those recommendationswere accepted and are currently in the process of beingimplemented. Therefore I find the conclusions of thereport premature. The University will not comment onthose portions of your draft report that speak to issuesinvolving Dr. Homberger and reserves its rights to com-ment if necessary in the future.”

ADOLPH L. REED JR. (Political Science), University ofPennsylvania; ANDREW T. ROSS (American Studies),New York University; ELLEN W. SCHRECKER (History),Yeshiva University; CARY R. NELSON (English),University of Illinois at Urbana-Champaign, ex officio;ROBERT M. O’NEIL (Law), University of Virginia, exofficio; ERNST BENJAMIN (Political Science), SilverSpring, MD, consultant; JOAN E. BERTIN (PublicHealth), Columbia University, consultant; MATTHEW W.FINKIN (Law), University of Illinois at Urbana-Champaign, consultant; ROBERT A. GORMAN (Law),University of Pennsylvania, consultant; JEFFREY R.HALPERN (Anthropology), Rider University, consultant;JEFFREY KRAUS (Government and Politics), WagnerCollege, liaison from Assembly of State Conferences.

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