After the Academic Freedom and Tenure Committee completed and approved its report concerning Professor Wilfred Cude’s complaint, the Executive Committee received from Professor D. Wood an appeal against the decision of the AF&T Committee to publish that report. The Executive subsequently chose to strike an arm's-length sub-committee to investigate whether the AF&T's decision to publish had been arrived at under the usual rules of procedure required of the AF&T committee under its by-laws. That Special Appeal Sub-Committee of the Executive reported in September 1996. Its report concluded that the AF&T Committee's decision to publish had been reached as the result of due consideration and according to the usual practices and regulations which apply in all such cases. The Executive Committee unanimously rejected Professor Wood's appeal, and confirmed the original decision to publish the present report.

In a series of letters beginning on Dec. 31, 1990 Prof. Wilfred Cude sought the assistance and intervention of the Academic Freedom and Tenure Committee of CAUT with respect to alleged unfairness in appointment procedures at St. Francis Xavier University. Prof. Cude, who had taught a number of courses at the University on a part-time basis, had applied in 1990 for a one-year sabbatical replacement position in the English Department. He was unsuccessful. Subsequently, Prof. Cude applied for another limited-term appointment available in 1991. He was again unsuccessful, and again asked for help from the AF&T Committee.

During its attempts to deal with Prof. Cude’s concerns, the AF&T Committee authorized three visits to St. Francis Xavier. In May, 1991, Committee Chair Alan Andrews and Committee Secretary Howard Snow visited the campus and made a preliminary investigation. This visit was followed by considerable correspondence between the Committee and various parties to the dispute. In January, 1992, a fact-finding team of Howard Snow and Committee member Roger Gannon visited the campus; their report to the AF&T Committee led it to conclude that "there appear to be prima facie grounds for believing that Wilfred Cude was indeed treated unfairly." President David Lawless was invited to join with CAUT in initiating a joint inquiry. On Feb. 1, 1993, he declined. On June 1, 1993, the AF&T Committee set up its own Committee of Inquiry consisting of Averil Gardner of the Department of English at Memorial University and Roger C. Lewis of the English Department at Acadia University. They visited the campus in July 1993, and the AF&T Committee received their draft report June 3, 1994. Professors Gardner and Lewis concluded that Prof. Cude had been unfairly treated in the 1990 hiring process both on the basis of the University’s own procedures and on the basis of CAUT’s Fair Appointment Practices document and Initial Appointments document. They did not find that there was unfairness to Prof. Cude in the 1991 search. Principal parties to the dispute were invited to comment on the report. Letters were received from Prof. Cude, Prof. Derek Wood, Chair of the English Department, Prof. Sergei Aalto of the Faculty Association, and President Lawless. The letter from President Lawless was brief but promised further comments, which were not forthcoming.

Based on these investigations, and taking into account comments from Cude, Wood, and Aalto, and the brief comment from Lawless, the AF&T Committee offers the following report on the matter.

The AF&T Committee's decision to write its own report is based on section *11 of the CAUT's Policy Statement on CAUT Investigational Procedures. Although the AF&T Committee's findings of fact are drawn from the evidence contained in the Committee of Inquiry's draft report, the AF&T Committee alone is responsible for the present report's contents, conclusions and recommendations.


CHRONOLOGY

1989

Fall - The English Department discussed staffing needs at several meetings.

Nov. 10 - Staffing needs were identified as Nineteenth Century; Shakespeare; Romantics; Modern British Literature.

1990

Jan. 9 - The Dean gave permission to fill three positions in the English Department: 2 tenure-track, 1 limited term sabbatical replacement (the "Modern Literature position" for which Cude eventually applied). Draft ads were circulated by Chair Derek Wood to individual members for comment or alteration but were not discussed in a meeting. These ads appeared in the CAUT Bulletin for February; the ad to which Cude responded called for an assistant professor with Ph.D. either completed or very near completion to teach elementary courses and a more advanced course in Modern Literature.

Apr. 9 - The Chair sent a memo to the Department which included his own lists of candidates for all 3 positions advertised, graded by him "in order of ability" with the following instructions:

"We will follow the principle of selection we have followed for the last decade, established conclusively in 1985. Only completed Ph.D.'s will be considered for appointment. However, as I understand this principle, if no suitable Ph.D.'s present themselves, ABD's will be considered as possible candidates i.e. we will not then re-advertise the positions."

In the same memo, the Chair indicated that he had not graded two candidates, one of whom was Prof. Cude. The reason seems to have been that they had taught in the Department and were considered to be, in some sense, internal candidates. Thus, Prof. Cude did not appear on either tier of this two-tier system at this stage of consideration for the Modern Literature position.

Apr. 12 - The Chair ruled that discussion on the Nineteenth Century candidates should focus initially on those with the Ph.D.; this procedure was challenged as unfair by a Department member, but the Chair's ruling was upheld by a vote of 7-2-2. The procedure of considering persons with the Ph.D. first was apparently followed in searches for all three positions. Prof. Cude does not have a Ph.D.

Apr. 18 - Rank-ordered short-lists and a timetable for interviews for all 3 positions were sent to the Dean.

May 8 - It was decided to offer the Modern Literature position to the 2 top-ranked candidates, neither of whom was Prof. Cude.

May 28 - The Chair returned from the Learneds and heard from the Dean that the top-ranked candidate had accepted the Modern Literature position; he wrote letters of "apology/commiseration" to unsuccessful candidates, including Prof. Cude.

May 30 - The Chair now learned that both top-ranked candidates had refused the Modern Literature position.

May 31 - The Chair then recommended Dr. A for the Modern Literature position. The Chair explained that, "Since the Department had placed Ms. B, an ABD, on the short-list for interview because it wanted to short-list a woman candidate, I searched for Dr. A (who) was much better qualified than Ms. B." Dr. A. declined the offer. Without calling a Department meeting or consulting with his colleagues, the Chair recommended Dr. C for the Modern Literature position. Dr. C had not been to Antigonish for any interview; moreover Dr. C’s late application had arrived 2 days after the Department had voted to offer the Modern Literature position to the top-ranked candidates on its short-list. The Chair, who was about to embark on a research trip to Europe, left negotiations with Dr. C in the hands of the Dean.

June 8 - The Chair phoned from Europe and learned that the Dean had not made an appointment; despite pressure from some Department members to call a meeting on this matter, the Dean (also a member of the English Department), refused to act, preferring to wait for the return of the Chair, who was due back in August.

July 20 - Prof. Cude, looking for work at Canada Manpower Centre in Antigonish, saw that the Modern Literature position was still being advertised despite the Chair's letter of rejection of May 28.

Aug. 17 - The Chair returned from Europe and learned from the Dean that, in the Chair’s words, "both Mr. Cude and (Dr. D) were still available and had re-applied for the post. I started trying to contact the original list of applicants."

Aug. 22 - The Chair sent a memo to Department members calling a meeting for 2 days later and rank-ordering 6 "likely qualified candidates" for the Modern Literature position; neither Prof. Cude nor Dr. D was included in this group.

Aug. 24 - The Department passed an "empowering motion" giving the Chair the right to recommend the candidate of his choice because the late date made the situation something of an emergency. Prof. Cude's name was raised as a possible choice. A straw vote was held with the following result: Dr. D=6, Dr. E=6, Prof. Cude=4.

Aug. 26 - Dr. E, who had been offered the position, declined. The Chair noted, "not having success with other candidates, I decided to recommend Dr. D (for the Modern Literature position)." Dr. D accepted.

Aug. 28 - Two part-time instructors suddenly withdrew from courses to which they had been assigned. The Chair assigned Dr. D these introductory courses and cancelled Modern British Literature, the advanced course that Dr. D had been assigned.

Sept. 2 - Prof. Cude met with two tenured members of the English Department, who agreed with him that he had been unfairly treated.

Sept. 7 - Prof. Cude met with the Dean to complain of unfair treatment.

Sept. 10 - Prof. Cude wrote to the Chair of the English Department informing him that he was seeking legal advice on a possible Human Rights Commission action concerning the Chair's "unprofessional and unethical mishandling" of his application for the Modern Literature position.

Oct. 3 - The Chair circulated Prof. Cude's letter to Department members, apologizing that he would have sent it out earlier except that he forgot about it.

Dec. 31 - Having decided against pursuing his complaint with the Human Rights Commission on the strength of legal advice, Prof. Cude wrote for help to the AF&T Committee of CAUT.

1991

Mar. 15 - Having been asked by AF&T to cast his concerns in terms of CAUT Policy Statements, Prof. Cude formally applied for CAUT intervention, referring to CAUT’s Fair Appointment Practices guidelines.

Apr. 1 - Prof. Cude applied for another limited-term position as Assistant Professor, responding to an ad in the February CAUT Bulletin.This ad specifically sought expertise in "Modern British Literature," unlike the previous year’s ad which referred to "Modern Literature."

Apr. 9 - The Chair replied to Prof. Cude that his application had been unsuccessful.

Apr. 29 - Prof. Cude wrote to AF&T alleging further unfairness by the Chair of the English Department.

Following the events various initiatives as described above were undertaken by the Academic Freedom & Tenure Committee.


COMMENTARY

In its 1990 advertisement for the sabbatical replacement position, the Department of English said it wanted someone who could teach "Modern Literature." Prof. Cude’s specialty within the area of Modern Literature is Canadian Literature. On the face of it, Prof. Cude had reason to think he was qualified for the position as advertised. What the Department apparently wanted, however, was someone who could teach "Modern British Literature." It has been suggested by some that the wording "Modern Literature" was intended to draw a broader range of applications. The Chair, in his letter of May 22, 1991, to the Academic Freedom and Tenure Committee states that the ad "did not specify Modern British Literature so as not to discourage Theory specialists with interests in other modern areas." Whatever the reason, the effect in the case of Prof. Cude was to have an applicant apply for a position for which he believed himself well qualified, and then to be rejected (at least partly) on the basis of an unstated criterion. In contrast, for the position it advertised in 1991, the Department did specify that it wanted someone in "Modern British Literature."

Prof. Cude met the criteria for assistant professor set forth in the Handbook of St. F.X. The Handbook (2.1.2.3) states "A person appointed to this rank (assistant professor) shall possess the Doctorate degree, or the Masters degree and three years of University teaching experience, or the Masters degree and exceptional scholarly achievement." Prof. Cude, who had a Masters degree, was generally acknowledged to have an impressive teaching record; his C.V. showed he was a productive scholar. Whether or not he ought to have won the competition for the position is a matter of academic judgment. But the chronology indicates that he was not accorded procedural treatment that would have been expected for an applicant who met the criteria in the Handbook. For example, in an initial ranking of candidates, the Department Chair did not include him at all. Some have suggested, and the Committee of Inquiry believed, that Prof. Cude was unranked because his occasional teaching put him in the category of an "internal candidate." It is difficult to see how an internal candidate could be fairly considered if his status kept him out of the ranking system. The effect would be to rule out internal candidates from the start.

The Department’s advertisement, which required "Ph.D. either completed or very near completion," is obviously more stringent than the requirements for the assistant professor rank specified by the Handbook. There has been much debate in this case about the right of a Department to demand qualifications more restrictive than those set forth in the Handbook. Be that as it may, it is our view that a candidate who meets the criteria in the Handbook — which is, after all, a public document regulating affairs in the University as a whole — is entitled to the same consideration as other candidates who meet the Handbook criteria. Instead, as the April 12, 1990 entry in the chronology shows, the Chair specified a two-tier system of consideration of candidates. Prof. Cude was not considered at the same time as candidates with Ph.D.s. The Department in caucus seems only to have considered him in late August when the need to fill the vacancy was obviously urgent.

The Department did not have a search committee (other than the Department as a whole) for the three positions it sought to fill. This left considerable discretion in the hands of the Chair.

The hiring period lasted through the summer months, for much of which the Chair was away on a research trip. The Department did not meet to consider candidates in the Chair’s absence. Prof. Wood has pointed to the wording of the bylaws of St. F.X. "the Chair of each Department shall be responsible for the recruitment and selection of qualified staff in the Department...." He believes that such a wording requires him to be present during all meetings pertaining to the hiring process. It is our view that this is an unnecessarily restrictive interpretation, one which obviously handicapped the Department and led to considerable suspicion as to the Chair’s motives. In a letter to our Committee dated May 22, 1991, the Chair gave a somewhat different rationale for his reluctance to let the Department meet in his absence. "I was convinced that there would be neither proper Departmental consultation nor fair hiring practice in my absence." This raises the question of whether the Chair would have encouraged such meetings if he had not been so pessimistic about his colleagues. Such a position would clash with the Chair’s restrictive interpretation of the University bylaws.

It is clear from the chronology that the Chair made many important hiring decisions on his own without the "proper Departmental consultation" that concerned him, and that the University Handbook requires: Recruitment and Appointment Procedures 7.1 stipulates that Chairs make their recommendations based on "consultation, in caucus, with Departmental colleagues." In late August, when the need to fill the position was urgent, the Department gave the Chair carte blanche to recommend the candidate of his choice. We question whether a Department can abdicate its responsibilities given the wording of the relevant section of the University Handbook. Even if the Department’s "empowering motion" could be shown not to contravene the wording of the Handbook, the apparent necessity of emergency action points to the need for a more workable system of hiring during the summer months. We should not lose sight of the fact that development of and adherence to procedures which are both efficient and fair are important for applicants as well as for the University community.


CONCLUSIONS

With respect to the 1990 appointment to a one-year sabbatical replacement position, the AF&T Committee is of the view that Prof. Cude was treated unfairly in the hiring process because:

• The advertisement to which Prof. Cude responded was misleading; it specified one area of expertise when the Department actually wanted something else. Prof. Cude believed himself to be qualified for the position as advertised, but was apparently rejected in part because his specialty did not meet the unstated criterion.
  
• Prof. Cude met the minimum criteria for appointment specified in the University handbook, yet did not receive procedural treatment similar to that given candidates with Ph.D.s;
  
• Appointments were recommended by the Chair without consultation with Departmental colleagues in caucus, as required by the University Handbook (Recruitment and Appointment Procedures 7.1).
  

With respect to the 1991 appointment procedure, the AF&T Committee did not find evidence of unfairness.

In the 1990 case, departures from the University’s own procedures led Prof. Cude and others (including some in the Department of English) to conclude that there was a hidden agenda to exclude him for non-academic reasons. These suspicions were heightened by the use of secret ballots and the failure to provide precise written reasons about the criteria used and the way in which those criteria were applied to Prof. Cude.

Most of our observations have been in terms of the University’s own procedures rather than CAUT documents such as Initial Appointments which has been available since 1984, and Fair Appointment Practices which was approved and promulgated about the time of the events chronicled above. Nevertheless we commend these CAUT documents to University administrators and faculty. Adherence to provisions therein would improve the practices that were found wanting in this case. If the procedures affecting Prof. Cude’s application in 1990 were judged by the standards set forth in these CAUT documents, they would be problematic in many ways (Fair Appointment Practices: 1.4, 2.1(c), 2.1.2, 2.2.3, 2.3.1, 2.3.2, 2.3.4, 2.4, 2.5, 2.5.4, 2.6.1; Initial Appointments: 4.5, 4.10, 4.12).

In view of the abundant evidence of unfairness and poor practice, we believe it is incumbent upon the University Administration to provide some appropriate form of redress to Professor Cude.

Approved by the CAUT Academic Freedom and Tenure Committee - September 15, 1995

Roger Gannon (Chair)
Patrick Grassick
Glenna Knutson
Patrick O'Neill
Joan Sherwood
Gail Storr


RESPONSES

In our rapidly-changing scholarly community, institutions are responding to budgetary constraint by hiring ever-increasing numbers of low-wage part-time faculty, who serve with no job security, pension benefits or entitlement to academic freedom. One of our most delicate professional tasks, therefore, is a responsible integration of such persons into the broader fabric of academic life. The most attainable major benefit to be offered part-time faculty, precisely because it does not involve significant monetary considerations, is some form of protection for their academic freedom. For this reason, I believe, my case is important.

It is painful for scholars to adapt to the world of Wal-Mart economics, a world I have inhabited for well over a decade, like many other part-time faculty. I have eight years full-time employment at four universities and colleges, and the equivalent of more than an additional five years of full-time employment at St. Francis Xavier, teaching courses at every undergraduate level on a contract basis. My experience in being arbitrarily denied the modest luxury of one year of full-time work, despite my qualifications and extensive service, merely points up the terrifying vulnerability of part-time faculty to pressure from administration and tenured colleagues. The CAUT is to be highly commended for addressing, in a fair and forthright manner, many of the tangled issues implicit in my case.

While I am genuinely grateful to the CAUT for this investigation, and even more grateful to my colleagues at St. Francis Xavier who courageously provided the key testimony supporting my appeal, I must nonetheless consider this hard-fought decision only a tentative beginning in the quest for part-time faculty rights. The process took over six years, during which time my finances were devastated. When I initiated my complaint, I was teaching two regular courses on campus and was eligible to teach another during the intersession or summer terms. A year later, I was deprived of my campus office space; and the following year, my teaching assignment was cut to one course, which became my annual quota thereafter, until the contracts stopped altogether last September. For the past four year, my annual earned income has been under $5,000. This both exhausted my savings and slashed my contributions to Canada Pension, my sole pension resource. At fifty-eight, my financial prospects are bleak: and the knowledge that many other part-time faculty are similarly affected simply underscores the bitter truth that the profession must strive to do better.

I submit that protection of part-time faculty rights should move to the forefront of the CAUT’s agenda. Perhaps the best mechanism for expeditiously resolving cases like mine would be a process of binding arbitration conducted through an academic ombudsman’s office, whose personnel would be appointed and funded by the government after consultation with the region’s scholarly communities. If such ideas are soon seriously explored by the CAUT, then the anguish, effort and funds expended in my case will not have been in vain.

Wilfred Cude


AF&T Committee offered no evidence that the minor procedural details it objected to in this hiring process affected the outcome in any way.

In fact, AF&T Committee violated due process and natural justice. The Final Report of its Committee of Inquiry was suppressed and never circulated as required. 1 Its own Inquiry Committee Chair, Roger Lewis, objected to the Final Report as published. IC improperly procured application files containing confidential transcripts and testimonials, without written permission or verification by their owners. 2 It untruthfully alleged that FAP, 3 on which its Report was based, was "promulgated about the time" of these events; FAP was circulated to AUT’s after this hiring was completed. It is a breach of natural justice to condemn by rules established after the event.

Mr. Cude’s application was simply not as strong as his competitors’. His near-total lack of fulltime faculty experience in the decades after he failed his PhD did not help him. AF&T Committee has not seen competing files nor attended the actual appointee’s impressive interview. Without access to data examined by the hiring committee, AF&T is inadequately equipped for comparative evaluation exercises.

AF&T’s narrative leans on serious factual errors which I am denied space to expose. Its main allegation that Cude was denied consideration because he was a Canadianist is easily disproved. In May 1990, the Chair recommended Dr. (H) for the post. She is a Canadian specialist: scholar, teacher, poet, journal editor. Cude was merely not the best candidate available.

Inference that the Department only "considered (Cude) in late August" is wrong. We discussed his file at every relevant hiring meeting. The vague criticism that he "did not receive procedural treatment similar to that given candidates with PhD’s " implies some obscure disadvantage. Actually, he was the candidate most carefully considered. Applicants who met advertised requirements were assessed first; those who fell short were subsequently examined. One fellow-candidate, (B), without the PhD was shortlisted, not disadvantaged by this procedure: Cude’s application was not as deserving as hers. The procedure was not material to the outcome.

AF&T alleges Cude was disadvantaged by a "rank-ordering" process. No prior rank ordering obtained at any hiring meetings. The Department did request the Chair to sort the files of external candidates before the meetings to ensure that competitive files were flagged beforehand, but all hiring meetings began with a tabula rasa. Department members had equal discussion time and voting weight.

AF&T’s suggestions that the University Handbook was contravened are improper. Separate committees of STFXAUT and the University President investigated this grievance, concluding that University requirements were followed with absolute propriety.

Support for Cude, an internal candidate, was small (25%). The candidates the Department recommended after exhaustive discussion were external applicants with no personal acquaintances in the Department (unlike Cude) but with majority support for their academic superiority (75%).

Derek N.C. Wood


The Executive of St. FXAUT makes the following observations about issues raised in the Report.

A local committee of inquiry established by St.FXAUT investigated the matters raised in this Report. This committee asked for submissions from the principals in the Cude case. These principals included all members of the English Department who were present during the 1990 hiring process. After examining the documentation received, the committee unanimously agreed that the hiring process in the English Department was in accordance with the St. Francis Xavier University Faculty Handbook and the University by-laws.

The requirements in the Faculty Handbook for an appointment to the rank of assistant professor are minimum requirements. These minimum requirements should not be confused with a selection process where the goal is to appoint the most qualified of the applicants. The sentence in the report "There has been much debate in this case about the right of a Department to demand qualification more restrictive than those set forth in the Handbook," suggests the Report’s authors seek to blur the distinction between minimum requirements for an appointment and what should be the goal of any selection procedure in any institution — the selection of the best qualified candidate.

It is not unusual for a department to give a chair permission to recommend to the dean that a candidate be offered a position when the need to fill a position is urgent. Most often at this stage in a hiring process members of a department will have had ample opportunity to study the available applications and to come to a judgement on the qualifications of all of those who have applied. The Faculty Handbook and by-law requirement for "...consultation, in caucus, with Departmental colleagues..." assumes a more typical hiring process where members of the department would be unfamiliar with the candidates, and there is adequate time for lengthy consideration and negotiation with candidates.

Sergei Aalto
President, St. Francis Xavier Association of University Teachers


There have been two internal inquiries into the allegations that a candidate for a vacancy in the St.F.X. Department of English was a victim of an unfair hiring process in the summer of 1990. A committee established by the St.F.X. Association of University Teachers found that proper procedures had been followed with respect to the hiring process. The University Administration held its own inquiry that likewise came to the conclusion that there was no basis in fact for any allegations that the hiring procedure was unjust, unfair or prejudicial. Nothing in the report of the AF&T Committee of CAUT persuades us that the judgements in these two internal reports were faulty.

Dr. Sean Riley
President, St. Francis Xavier University