Buyout Signals Death of Academic Freedom

Roger Copeland, Professor of Theater and Dance

In what must surely be one of the greatest lawyer jokes of all time, Groucho and Chico parody the jargonized mumbo-jumbo of legally-binding contracts in the “contract scene” in the Marx Brothers’ A Night at the Opera.

Struggling to make sense of an inscrutable document, Chico and Groucho have the following exchange:

Chico: Hey, wait, wait. What does this say here, this thing here?

Groucho: Oh, that? Oh, that’s the usual clause. That’s in every contract. That just says, uh, it says, uh, if any of the parties participating in this contract are shown not to be in their right mind, the entire agreement is automatically nullified.

Chico: Well, I don’t know…

Groucho: It’s all right. That’s, that’s in every contract. That’s, that’s what they call a sanity clause.

Chico: [Laughs.] You can’t fool me. There ain’t no Sanity Clause!

There ain’t no sanity clause. But if you’re an Oberlin employee in your mid 50s or older, you know all about the insanity clause — the non-disparagement clause — which the College’s legal team have inserted into the Voluntary Severance Incentive Plan as reported in the Review last Friday (“College Offers Cash for Early Retirement,” May 6). Editors-in-chief Julian Ring and Maddie Stocker are surely correct when they describe the “unsustainability of Oberlin’s present financial track.” Accordingly, it’s easy to understand why the trustees and administration might be inclined to buy out some of the longest-serving — and thus highest-paid — members of the faculty and staff. But surely, there must be a way to structure a buyout that doesn’t require a moral sellout on the part of the employees who take the deal.

Of course, it’s common for separation agreements to include “non-disclosure” clauses, which prevent the retiring employee from publicly discussing the specific financial details of the buyout. That’s not unreasonable, but what possible justification can the College have for including a gag order that reads as follows: “The employee shall refrain from all conduct, verbal or otherwise, that disparages or damages the reputation, goodwill or standing in the community of the College.” This sort of language is much more common in severance packages crafted by gigantic corporations like Disney or Google. In fact, fans of HBO’s Silicon Valley may remember the moment several Sundays ago when Gavin Belson, the megalomaniac billionaire CEO of Hooli slyly inserted a non-disparagement clause into the generous severance package prepared for hundreds of employees he was about to “let go.”

On April 19 I attended an open forum about the buyout plan hosted by the two Oberlin administrators who have the unenviable task of administering it, Chief Human Resources Officer Joseph Vitale Jr. and and Director of Compensation and Benefits Mark McLeod. I called their attention to the clause and asked them to provide me with an example of what might constitute legally actionable “disparagement.”

Both Vitale and McLeod seemed puzzled by my question. “We didn’t draft the agreement,” they said. “Our lawyers did. So we’ll have to check with them and get back to you.” I gave them my contact information, but I’m still waiting for their reply.

In response to their silence, I can only speculate. One inevitable result of the buyout will be to greatly reduce the number of faculty who enjoy the protections of tenure. Whether this is an intended or unintended consequence of the buyout is impossible to know, but it would be foolish to pretend that Oberlin is immune to the sort of corporatization that has become more and more characteristic of academia in recent years.

Corporatization manifests itself in a wide variety of ways. Just for starters, it encourages a top-down management style that is fundamentally at odds with Oberlin’s previous once-cherished tradition of faculty governance. It probably goes without saying that the buyout package was never mentioned — let alone discussed or debated — at any meetings of the General Faculty. Indeed, in the age of corporate downsizing, the core principle of this new corporate style of management is very simple: Reduce the number of tenured faculty any way you can. Untenured faculty are, for obvious reasons, easier to manage. So it may well be that this buyout is really a buy off.

I’ve been teaching at Oberlin for more than forty years, and over the course of those four decades I’ve written more than my fair share of op-eds and letters to the editor for The Oberlin Review and other publications including The New York Times. In other words, I’ve been doing this for so long that I’ve come to take the supposed protections of academic freedom for granted. But if I sign the College’s separation agreement, will I be able to continue to exercise these freedoms without putting myself at risk?

I posed this question to a leading labor lawyer in Cleveland and the first thing she asked me was, “How is the buyout structured? Are you paid a lump sum or is the money doled out in installments?” I explained that the retiree would receive 12 monthly payments over the course of the year following the date of “severance.” She then cautioned me as follows: “I hope you realize that if — during that period of time — you say or do anything that can be construed as “disparaging” the College… their payroll department can simply withhold any additional payments. They wouldn’t even have to go to court.”

In other words, the burden would then be on me to challenge the College’s right to enforce an agreement I had “voluntarily” entered into with my eyes wide open. That — needless to say — is very sobering, if only because institutions like Oberlin have an inherently unfair advantage in this regard. They already have lawyers on their payroll.

Of course, the $64,000 question is whether or not a non-disparagement clause is really enforceable. Disparagement is one of those weasel words which lacks a precise legal definition. Unlike defamation — “the act of making untrue statements about another which damages their reputation” — disparagement, by contrast, can apply to any comment which “damages the reputation, goodwill or standing of the College in the Community,” even if that comment if verifiably true.

Let me be very clear about this: Oberlin appears to be suggesting that even the most truthful, well-documented “criticism” of a College policy or a College administrator could still qualify as “disparagement” and thus leave the outspoken retiree vulnerable to legal action. As someone who was raised on Frank Capra films like Mr. Smith Goes to Washington, there’s an idealistic part of me which desperately yearns to believe that as long as the truth is on your side, you have nothing to worry about. One person can change the world, and all that.

But today, Capra’s rousing message feels not just naïve, but dangerously misleading. For a more honest portrait of what can really happen these days to well-intended whistleblowers, see Michael Mann’s frightening film The Insider. Of course, it sounds scandalous to phrase the matter in this way, but aren’t we really talking about a practice known on the street as hush money?

It seems both hyperbolic and melodramatic to invoke in this context a Hollywood film about big, ruthless, heavily-lawyered multinational corporations. Is Oberlin College really going to behave in a way that might remind audiences of Big Tobacco’s efforts to kill a story on CBS’ “Sixty Minutes”? Probably not.

But here’s the problem with that argument. Ask any First Amendment lawyer about the non-disparagement clause the College has drafted and they will be quick to suggest that the real function of such ambiguously worded warnings against disparagement is to preemptively intimidate the retiring party into not taking any chances, not doing anything that might endanger their retirement package.

To be sure, there are many things a retiring professor is not automatically entitled to (office space, research facilities). But just as surely, no long-time member of the faculty should be legally required to renounce fundamental protections that are supposed to be guaranteed by the concept of academic freedom — not to mention the First Amendment to the Constitution.  

After all, it’s not as if the faculty and staff came up with their own idea of “voluntary separation” and then proposed it to the College. The buyout plan was devised solely — and surreptitiously — by the trustees and the administration, presumably for financial reasons. In light of these circumstances, it feels both ethically and legally reprehensible for the College to ask that we — the senior faculty and staff — not only help bail them out of a financial crisis of their own making but that we also voluntarily kiss both academic and First Amendment freedoms goodbye. I therefore implore the trustees and the administration to remove, or at least clarify the scope of, this non-disparagement clause — which I will forever regard as an insanity clause.

In the May 6 Review article that brought the buyout to the attention of the wider public, President Krislov is quoted as saying that the VSIP will allow senior faculty to “retire in a way that will preserve their dignity.” Really? Has Krislov read the fine print? I can’t think of a more undignified way to end a forty year teaching career than to be asked to sacrifice the very freedoms that attracted me to academia in the first place.

My inclination is to tell the College that I will happily accept your offer to retire sooner rather than later, — providing that you remove the clause in question. Otherwise — and let me phrase this in the most delicate and un-disparaging way possible — here’s what you can do with your separation agreement: carefully fold it four ways and stick it where the sun don’t shine.