IT IS FORTUNATE that instances like the recent controversy between College Dean Edward Ayers and former Echols Dean James Sofka are rare occurrences at our University. Yet Sofka's plight raises important questions about the rights of professors and the responsibilities of the University when it comes to matters of hiring and firing.
Sofka's argument against his dismissal rests on the idea that he has been deprived of due process. "Due process" traditionally refers to the procedures that must be respected before an individual may be punished for a crime. Yet the loss of a position of employment at the University does not constitute "punishment" in a legal sense.
Firing someone from a position usually reflects shortcomings in performance or misconduct, factors which do not constitute moral faults or "crimes," but often simple lack of skill or judgment that an individual may not be aware of or in a position to correct.
We might ask what due process entails in the situation of a University employee who, like Sofka, contests the factual basis of his firing. Sofka indicated in an e-mail that he believes University employees generally should have the right to contest the factual basis of their dismissal, analogizing his situation to that of a "student being dismissed from the University on 'rumors' of cheating and never being allowed to have the case brought before an Honor trial." Sofka concludes that his is "an identical situation with equally grave consequences."
Yet Sofka's situation is fundamentally different from that of a student. The University is geared towards meeting the needs of students; we are more willing to give leeway to students whereas we would expect higher standards of professors.
Allowing the University broad discretion over employment decisions serves the interest of efficiency. If an employee were always entitled to an "impartial investigation," in Sofka's words, into the basis of their firing, the University would be delegating a large degree of authority over employment decisions to an investigative body, which would be entitled to second-guess the judgment of those who actually must rely on the professional capability of a given employee.
Moreover, a dismissed employee would be presumably entitled to a hearing in cases where such an employee might not be able to make out a cause of action in an actual court.
We might be concerned, however, that under such a system employees would be fired on the basis of rumors. As Sofka notes, the charges against him have not been subject to an "impartial investigation."
But this charge seems to miss the point. While Ayers' letter references "complaints," the fact that Sofka was dismissed does not indicate that the University accepts those complaints as fact, or even that those complaints could be proven by a formal investigation. Rather, they reflect a justified concern that these complaints indicate a probability of employee misconduct, as well as student dissatisfaction which could land the University in serious trouble. Consideration of student complaints are a legitimate factor in evaluating an employee's job performance: a complaint is an indication of student dissatisfaction and provides legitimate evidence that misconduct may in fact be taking place. And in our litigious society, the threat of a lawsuit alone often justifies terminating an employee.
As employment law expert and U.Va. law professor Rip Verkerke said in an e-mail, "In the world of at-will private employment, any fear at all that employee misconduct will produce a lawsuit would justify termination. The fact is that alleged employee misconduct of one sort or another generates most employment-related lawsuits against firms. Obviously, sexual harassment suits fit this pattern." The University cannot wait for a smoking gun when serious liability could result from an employee's actions.
Indeed, Ayers appears to be acting well within his power. Though University policy states that long-term general faculty serve "with the expectation of continued employment," this clause only applies when that faculty member's "job performance is judged to continue at a high level of ... effectiveness," a judgment that Ayers has justifiably made in the negative.
Sofka's anguish at his dismissal is certainly genuine, and his case could certainly be a cause for sympathy if, as he maintains, the charges against him are without merit. But in our imperfect world, employment decisions often rightly reflect considerations of self-interest rather than broad considerations of justice.
Noah Peters' column appears Fridays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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