SENATE Year End Report

Report of the 1997-98 Committee on the Faculty

May 7, 1998

The research universities of the United States are, it is often observed, the envy of the world. For a long time they have compellingly represented the very best of America's accomplishments in building and sustaining effective institutions--even at times when the nation's commerce and industry have seemed to fall short of the highest international rank. The conditions securing freedom for scholarly and scientific inquiry, which is the central component of the American university's longstanding success, are sustained by separated authority and shared governance.

As this system is embodied at the University of Pennsylvania, two major powers--the Standing Faculty and the Administration--operate with separated authority arising from distinct grounds of institutional competence, under the external supervision of the Board of Trustees. Within the institution, certain things can be decided by one branch or the other acting alone, others require their mutual concurrence, and still others may be carried out largely by one of the branches after appropriate consultation with the other. The practices adapted to this context of coordinate powers have kept the university distinct in its constitutional identity as an institutional type, not merely a variant of the commercial corporation, whose exemplars wax and wane much more flexibly in response to short-term agendas and fads in structural experimentation. Nor is the latter type noted for its regular internal freedom of expression.

In its current history, the University is permeated by the discourse of "change." One hears that Penn must change in order to survive, that it must keep up with the world, readying itself to respond to pressures and opportunities. But the very force of this proposition is that the purpose of embracing change is precisely to preserve the essential nature of the University as an institution. Conversely, however, if Penn can enliven the particular constitutional character that already lies at the base of its past evolution and success, it can transform the environment of change into a force whose terms it creates rather than reacts to.

As we conduct our policy discussions about what might be good for the University, it is necessary, then, to add to the usual calculations (about inventiveness, effectiveness, and efficiency, for example) an additional level of reflection about which model of the University we might be reinforcing by the proposed action. This is the constitutional question. As it is for the broader American society, this is the essential second step in a style of deliberation constrained to make policy that sustains and fulfills the character of the institution in which it arises. For the University, this institutional character incorporates not just its educational and research mission but also its governmental organization.

The Charge to the Committee

The Committee on the Faculty received an extensive charge for the year's work, with each of its items reflecting questions implicating the nature of the role of the faculty at the University. Two of main items--

(a) the proliferation of non-standing faculty appointments and titles, along with the associated question of who is teaching our students; and

(b) issues of copyright and intellectual property

--pertain directly to questions at the level of shared governance because they involve the Standing Faculty's institutional power to concur or refuse its concurrence. These and a third item--

(c) issues surrounding the retirement of faculty

--also have ramifications for the constitutional identity of the Standing Faculty itself.

The Committee as a whole deliberated at length about how to characterize the role of the Standing Faculty and its individual members, from the perspective of how this role reflected, and would be sustained by, the principles of shared governance at the University. It was understood that the more specific issues of policy about which the Committee was asked to deliberate and advise could be thoughtfully assessed only in the context of more articulated comprehensive model of the faculty's role in the institution.

In the course of its work, along with other topical items, the Committee also reworked the Policy on Employment of More than One Family Member at the University and critically reviewed a set of proposed changes in the benefits package available to the faculty as a whole.

Separate subcommittees, including members from the Committee and other faculty appointments, were set up to deal with "Non-Standing Faculty," "Intellectual Property and Copyright," and "Faculty Retirement and Benefits." Analysis and recommendations produced by the first two subcommittees and supplemented by the larger Committee's discussions will be summarized here. Further work on the issues associated with retirement will be carried over until next year, as will the next stages of analysis arising from the proposals of the other two subcommittees.

Non-Standing Faculty, and Who Is Teaching Our Students?

This year's Committee on the Faculty was asked to consider whether to support additional positions of Practice Lecturer and Practice Professor, as a consequence of the narrow vote in the Senate Executive Committee at its final meeting last year in favor of such positions in the Wharton School and the Graduate School of Education. At the time, SEC stipulated by vote that no further appointments be made until a full study was made by the Committee on the Faculty. "It was agreed that SEC has serious concerns about the proliferation of non-standing faculty positions and what that means to the future of the University" (Almanac May 13, 1997). During the course of the current year, the Committee was asked to consider requests for these or similar positions, as well as for a redefinition of the qualifications for clinical professors, variously by the School of Social Work, the Law School, the School of Medicine, and the School of Nursing.

In addition to the need to clarify the current status regarding categories, roles, and responsibilities across the full range of non-standing faculty at the University, the Committee decided it was important to associate these issues with an examination of who is teaching our students, which would focus on the mix of Standing and non-Standing Faculty participation in the education that underlies our degree programs.

In a series of documents prepared for the Committee, which should serve as the foundation for future inquiry and deliberation, the Subcommittee on Non-Standing Faculty laid out the institutional issues posed by the expansion of numbers and categories of the non-standing faculty, raised practical questions regarding the definition of their status and roles, and proposed model protocols for the collection of data which would show the current set of faculty appointments and responsibilities across categories, to be obtained from schools that request new appointments and new or amended categories of appointments. The Subcommittee also proposed a separate survey for the Office of the Provost that seeks to learn the distribution of faculty responsibilities, across categories of personnel, as they show up in the total coursework represented in a graduating class at the undergraduate level in each school.

Action by the Committee on the Faculty. The larger Committee endorsed these proposals as the basis for the inquiry it would require before it could properly consider further requests for changes of faculty classifications or increases in numbers.

In the course of the Subcommittee's moving forward on this basis, the request from the School of Social Work was withdrawn and the one from the Law School (for a Senior Lecturer) proceeded under this standard of review, concluding in a recommendation by the Subcommittee to endorse the new position. The requests from the schools of Medicine and Nursing, which were sent forward to SEC later, are in process.

In response to its request to the Office of the Provost regarding the mix of Standing Faculty and non-Standing Faculty contributions to the undergraduate degrees, the Subcommittee was formally told that the Provost's Office did not have the relevant data.

(a) In line with the recommendations of the Subcommittee, the larger Committee agreed to require that, before it can advise on new requests for appointments, it should be provided sufficient information about the current distribution of the teaching roles in that school, including the most recent available information about the numbers of enrollments taught by personnel in various statuses, and the projected changes in those enrollments associated with the new appointments. Under appropriately constrained standards that are attentive to the fundamental principles of the University's mission, the addition of new categories of faculty could quite properly increase the variety and flexibility within academic programs at Penn. But the Standing Faculty cannot proceed to elaborate standards for coherent deliberation in this regard without the kind of substantive information that the Subcommittee has set out.

(b) The Committee, like the Subcommittee, was astonished that the central administration has no systematic information about who is teaching our students and what role is played by the standing and non-standing faculty in the teaching mission of the University. In order to carry out the responsibilities arising from its authority over degree programs and the curriculum on a knowledgeable basis, the Standing Faculty must have access to such information. And if the Administration does not now have it or collect it, it must do so in order to carry out its appropriate functions, as well as its responsibility to the Standing Faculty.

(c) After a preliminary stage of inquiry concerning the range of standing faculty, non-standing faculty, and teaching-staff titles currently in use across the Schools, the Subcommittee concluded that there is no systematic basis for the assignment of titles. The larger Committee agrees that work with the Administration should be undertaken by the Standing Faculty to develop a set of faculty and teaching-staff titles, along with explicit conditions required for the appointment of individuals to those positions, with an understanding that authentically distinct roles within specific Schools might justify non-standardized titles. Although the use of the title "professor" does not now correspond to the status of membership in the Standing Faculty at Penn, the substantially increasing divergence between the professorial title and that status within the self-governing Standing Faculty should be examined critically, in the course of this review. The proposal for such a systematically organized set of titles should then be deliberated upon by the Senate Executive Committee.

Senate Executive Committee Action. At its special meeting on April 15, 1998, the Senate Executive Committee voted to endorse each of these three proposals:

(a) Before it will respond to requests for new categories of faculty or for increases in the number of personnel within these categories, SEC will require systematic information on the current distribution within the Schools of the types, numbers, and responsibilities of instructional and research personnel, including standing faculty, non-standing faculty, clinician-educators, and other relevant categories.

(b) SEC reiterates the Standing Faculty's right to know who is teaching our students, by category of instructional personnel, so that the Standing Faculty can carry out its responsibility for the educational mission of the University, and SEC requests the central administration to provide for its availability.

(c) SEC endorses a move toward making classifications of instructional and research personnel more coherent across the Schools, unless a School can justify the need for differences.

Intellectual Property and Copyright

In July of 1995, a joint Faculty Senate-Administration Task Force on Copyright Policy issued a proposal for a new Policy and Procedures Relating to Copyrights. The proposal was based on "the academic custom that authors have the individual right to own their works, and the University makes no claim" of ownership, except in narrowly defined circumstances where the works are made under contract between the University and an outside sponsor or where the works are expressly considered "works made for hire." In addition, when special support is provided by the University for the producing works, the proposal indicates that the individual scholar and the University should negotiate the assignment of rights, preferably prior to the start of the work.

In March of 1997, Provost Stanley Chodorow wrote to the deans of the Schools indicating his view that the current policies on copyright and a set of guidelines on the ownership of software created by faculty members were not adequate for dealing with new developments in the electronic environment. He asked each of the Schools to begin a process to reassess University policies on copyright, software, and courseware. A month later he wrote to the deans again, extending the deadline to November 1, 1997, and enclosing the 1995 Task Force report, along with a statement of his comments on that report. In his letters, he emphasized the need for in-volvement of faculty members in the deliberations at the School level. And in his statement of comments, he indicated his belief that "policy on intellectual property has to return to first principles and deal with underlying or essential issues."

On several occasions, the Committee on the Faculty as a whole discussed the implications of the policies on intellectual property for the nature of the role of the faculty within the University, expressing a commitment that the policies should be the same for Standing Faculty members across Schools. By February, reports had been received by the Provost from half of the Schools: Engineering, Fine Arts, Medicine, Nursing, Social Work, and Veterinary Medicine. Other schools were continuing the process, but some indicated that it would not be possible to agree on a proposed policy. A reading of the reports submitted shows a strong thematic consonance with the principles enunciated by the Task Force, although there is significant variation in detail and emphasis from report to report.

Action by the Committee on the Faculty.

(a) The Committee on the Faculty concluded that the principles articulated by the 1995 Task Force report represent sound practice; they are substantively endorsed by the School reports that were submitted; and they are reflect the longstanding standards which the University has been following on a consistent basis. This settled practice is inconsistent in significant ways with at least some readings of the currently published copyrights policy in the Handbook for Faculty and Administrators. The Committee also took a strong view that if the University were to anticipate any change in the status quo regarding the current "common-law" standard for copyrights, the Standing Faculty would need to concur in the change.

(b) As for ambiguous areas of intellectual property where the issues of ownership and use may fall between the currently practiced policies on copyrights and patents, the Committee reasoned that the principles of the two current policies should be interpolated to the extent that the new forms of invention and scholarship take on the characteristics of the more traditional categories.

(c) The Committee was aware that both of its conclusions worked well as provisional measures, leaving some uncertainty and potentially great ambiguity. It, therefore, urged that an ad hoc committee be established to make specific proposals concerning how the 1995 Task Force principles should be implemented in a formal copyright policy and how the interpolation of the copyright and patent policies might be set out systematically for new areas of intellectual property.

Senate Executive Committee Action. At its special meeting on April 15, 1998, SEC passed the following resolutions:

(a) The University should acknowledge that customary practice on copyright at Penn is the currently authoritative standard, and that it converges with the recommendations of the Task Force Report. The University should also acknowledge that its published policy on copyright in the Handbook for Faculty and Administrators is at variance with this settled practice and should not be regarded as authoritative.

(b) As policy is needed to cover new technology, such as software, standards for these areas should be interpolated from current established practices at Penn on patents and copyrights.

(c) An ad hoc committee should be established to codify the settled copyright practice and a standard for new technology arising from the interpolation of copyright and patent practices.

Submitted by the Senate Committee on the Faculty
Ralph Ginsberg (education)
Larry D. Gladney (physics)
William F. Harris II (political science), Chair
Robert C. Hornik (communication)
Charles W. Mooney (law)
Yvonne Paterson (microbiology/med)
Harvey Rubin (medicine)
Paul Shaman (statistics)
ex officio
Senate Chair Vivian C. Seltzer (social work)
Senate Chair-elect John C. Keene (city & regional plng)


Subcommittee on Intellectual Property
Barry Cooperman (chemistry)
Ralph Ginsberg (education), Chair
Charles McMahon (materials science & engr)
Harvey Rubin (medicine)
Mark Steedman (computer & information sci)
Subcommittee on Non-Standing Faculty
Joan Goodman (education)
Robert Hornik (communication), Chair
Yvonne Paterson (microbiology/med)
Ralph Rosen (classical studies)
Eric Weinberg (biology)
Subcommittee on Retirement and Benefits
Fay Ajzenberg-Selove (physics)
Charles E. Dwyer (education)
Julie Fairman (nursing)
Paul Shaman (statistics), Chair

Almanac, Vol. 44, No. 33, May 12, 1998