Amid Layoffs, Union Contracts Force Public Colleges to Ignore Merit

Prior to the pandemic, many U.S. non-elite colleges were already facing existential threats. Demographic changes and technological innovation led one Harvard professor in 2017 to conclude that 50% of U.S. colleges would be bankrupt within 15 years. With the arrival of COVID-19, these colleges were pummeled more quickly, with enrollment seeing its largest decline in 50 years. As a tenure-track professor who had spent a career in well-established public colleges in New York and New Jersey, I had taken for granted stable employment and was ignorant of the layoff clauses in my union’s contracts. Not anymore. 

In 2021, William Paterson University faced a $30 million deficit, and the administration announced its downsizing of 150 tenured or tenure-track professors. It was then that many faculty were enlightened about the process that was determining who was to be let go – the decisions were to be quality-blind and blind to tenured status. Buried in our union contract was a “last in, first out” (LIFO) clause: “To the extent it is not inconsistent with the preservation of the institution’s academic integrity and educational purpose, layoffs within a layoff unit shall be made in order of years of service, laying off employees with the fewest years of service first.” The longer you’d been employed by the college, the safer you were. This was true even if a professor was an ineffective teacher, hadn’t published recently, or was largely absent from department or university service.

I was temporarily protected by my program’s popularity, and two junior colleagues who would be let go before me, but the LIFO clause struck me as irrational and unjust. Ignoring meritocratic considerations suggests a violation of fundamental fairness to employees. It also has consequences for larger constituencies, ignoring what is necessary for the survival of a higher-education institution, which provides social benefits beyond the gaining of competencies and knowledge – from economic mobility to cutting-edge research and increased student participation in democracy. LIFO layoffs are of concern to all whose tax dollars support these colleges.

LIFO has garnered the most attention in public K-12 schools. The policy is found in 10 states’ laws, though surveys have shown them to be unpopular. In New York, 75% of voters preferred merit-based layoffs. Public school teachers themselves favor more diverse criteria for such decisions. Other states leave it to districts to decide if qualities like effective teaching are considered. LIFO policies have been the subject of lawsuits, such as in California and New Jersey, which pitted teachers’ unions against parents.

In the case of higher education, layoffs are guided by a complicated mix of state laws, private contracts, and/or collective bargaining agreements, many of which have LIFO clauses. Finding out what proportion of colleges have these clauses, which states mandate them, and which are a matter of union negotiation is difficult – in part because the college “bubble” of enrollment growth for decades had not begun to burst until recent years. Thus, large-scale layoffs have not been a factor up till now. But LIFO policies are poised to become an issue of major concern as more colleges declare fiscal difficulties. 

LIFO’s effects will be unfairly borne by poorer communities and also by faculty of color, greater numbers of whom have entered academic ranks more recently, and thus are more likely to be let go first. Downsizing highly effective K-12 educators of color has already been demonstrated to occur because of LIFO. In Vergara v. State of California (2014), the judge articulated: “the evidence [is] clear...LIFO affects high poverty and minority students disproportionately.” He ruled that LIFO violated the equal protection clause of the California constitution and was “shocking to the conscience.” Though an appellate court later threw out that ruling, legislative victories against LIFO have occurred, as in Minnesota, which removed LIFO from state policy for K-12.

In its indifference to the student learning experience, LIFO will help kill struggling public colleges. It can stifle innovation in the classroom since such layoffs don’t consider professors’ ideas about curricular revamping and job-relevant courses. Even if a professor has won teaching awards and brings students to conferences and mentors them, it won’t matter. Only the “metric” of years served counts – even though empirical evidence does not support the idea that years of teaching alone correlate with better teaching.

LIFO can also stifle innovation in research, as it becomes irrelevant whether a professor has obtained a major grant or published ten articles in a year on a subject of importance. There is no better way to demotivate employees than to establish a policy that makes no distinction between those who do more and those who do less.

This is not to argue for a reversed-layoff methodology – letting go those who have been at a university the longest on the presumption that generally younger people are more valuable (and cheaper). But it is an argument for a less crude tool to assess professors when deciding who must be let go. No private-sector company would lay off employees solely on the basis of what year they were hired. We shouldn’t tolerate this in public education, either. If effective teaching, strong research, and committed service don’t really matter, then universities will deserve the bleak future that inevitably awaits.