University of Michigan’s 2020 Bylaw 5.09 Rewrite Addressed Procedural and Substantive Issues Dr. Bradley Foerster Had Already Raised
In May 2020, the University of Michigan substantially revised Regents’ Bylaw 5.09, the University-wide procedure governing dismissal, demotion, and terminal appointment of tenured and tenure-track faculty.
The University conducted Dr. Bradley Foerster’s 2018–2019 dismissal proceeding under the prior April 2011 version of Bylaw 5.09. During that proceeding, Dr. Foerster placed multiple procedural objections into the University record concerning the structure of the initial hearing, the substantive grounds for dismissal, the applicable standard of proof, advance access to evidence, potential bias, procedural timing, and academic-freedom protections.
The comparison below examines the procedure governing the Foerster proceeding, the objections Dr. Foerster documented during that proceeding, and the procedure the University adopted in May 2020.
The April 2011 Bylaw created two different initial-hearing paths.
Cases involving matters primarily concerning the affected faculty member’s school or college proceeded under subsection 4. Under subsection 4, the executive authority could appoint a special ad hoc faculty committee within the administrative unit to conduct the hearing. Cases involving matters of “general university concern” proceeded under subsection 5 through SACUA’s standing Subcommittee on Tenure. The President determined which route applied after consultation with SACUA and the relevant executive authority.
The University assigned the Foerster proceeding to subsection 4, and a Medical School Ad Hoc Committee conducted the initial hearing.
In Dr. Foerster’s March 18, 2019 memorandum to the SACUA Review Committee, Dr. Foerster stated that a subsection 5 hearing had been requested because the proceeding involved matters of general University concern and because an initial hearing inside Michigan Medicine presented asserted conflicts. Dr. Foerster’s memorandum states that the request was “denied without explanation.”
Dr. Foerster’s March 18, 2019 memorandum identified federal grant management, whistleblower reporting, sexual misconduct and retaliation, NIH/HHS/VA relationships, witness intimidation, secret investigations, due process, constitutional rights, and related subjects as matters of general University concern.
The May 2020 revision addressed that concern by requiring referral to SACUA and assigning SACUA responsibility for appointing the Hearing Committee.
Upon a request for a hearing, SACUA appoints the Hearing Committee. Three members come from a Standing Judicial Committee appointed by SACUA, and two members come from a list supplied by the affected faculty member’s administrative unit.
The April 2011 Bylaw permitted dismissal for broadly stated “causes accepted by university usage, properly connected with the improvement and efficiency of the faculty, and consistent with the character of the tenure involved.”
In Dr. Foerster’s March 18, 2019 memorandum to the SACUA Review Committee, Dr. Foerster challenged the substantive basis for dismissal under AAUP guidelines. The memorandum cited the AAUP standard that adequate cause for dismissal should be “related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers.”
Dr. Foerster then stated that “the basis for dismissal in the Charge Letter is not related directly and substantially to the fitness of my professional capacity as a teacher or researcher.” Dr. Foerster identified the charged subjects—including reporting suspected fraud, dismissal from the VA while on FMLA, hacked emails and recordings, research-regulatory issues during leave, and seeking judicial redress—and argued that those subjects did not satisfy the AAUP professional-fitness standard.
The May 2020 revision adopted materially more specific grounds for dismissal: demonstrated misconduct in teaching or research, substantial and manifest neglect of duty, or personal conduct that substantially impairs fulfillment of institutional responsibilities, including moral turpitude or professional or scholarly misconduct.
Dr. Foerster had therefore already raised under AAUP guidelines the precise substantive issue the May 2020 rewrite later made explicit: dismissal requires more than generalized allegations of unprofessional conduct. The revised Bylaw requires conduct serious enough to constitute misconduct in teaching or research, substantial and manifest neglect of duty, or personal conduct that substantially impairs institutional responsibilities. Dr. Foerster had challenged the 2018 charges precisely on the ground that the charged conduct did not rise to that level.
The April 2011 Bylaw did not state that dismissal required clear and convincing evidence. The review provisions instead directed consideration of whether the “weight of the evidence” supported the Hearing Committee’s findings and recommendations.
Dr. Foerster raised the absence of a defined evidentiary threshold during the 2019 SACUA review. Dr. Foerster’s March 18, 2019 memorandum cited SACUA guidance calling for “clear and convincing proof.” The memorandum also records University counsel Daniel Tukel’s statement at the May 1, 2019 SACUA hearing that the Bylaw did not identify a specific threshold standard.
The May 2020 Bylaw expressly provides that a recommendation of dismissal, demotion, or terminal appointment “must be supported by clear and convincing evidence.”
The April 2011 Bylaw gave the affected faculty member the right to examine documentary evidence received by the hearing committee, but the text did not require the University to disclose all proposed hearing evidence before the hearing began.
Dr. Foerster’s March 18, 2019 memorandum states that, despite a request for the University’s proposed evidence, the University initially provided only 2 of 55 proposed exhibits before the first hearing.
The May 2020 revision created a defined pre-hearing evidence exchange. The University must provide the affected faculty member with all evidence to be used at the hearing within seven days of issuance of the Charge Letter. The affected faculty member then receives thirty days to provide evidence to be used at the hearing.
Dr. Foerster raised conflict-of-interest and potential-bias concerns during the 2018–2019 proceeding.
Dr. Foerster’s March 18, 2019 memorandum specifically states that Dr. Foerster “was not given the option of disqualifying any member of the committee.”
Dr. Foerster’s memorandum also challenged the independence of the Medical School Ad Hoc Committee because the committee operated within the same administrative structure whose leadership initiated the dismissal proceeding.
The May 2020 Bylaw expressly permits the affected faculty member, upon showing “clear and sufficient reasons for potential bias,” to request removal and replacement of one or more Hearing Committee members.
The April 2011 Bylaw directed the initial hearing committee to proceed with “reasonable promptness” but imposed no specific deadline for completing the initial hearing.
Dr. Foerster identified the duration of the proceeding as part of the fair-hearing objections presented to SACUA.
The May 2020 revision provides that, under ordinary circumstances, the Hearing Committee must conclude the hearing no later than 58 days after issuance of the Charge Letter or 21 days after submission of the affected faculty member’s evidence, whichever occurs sooner.
The revised Bylaw also imposes defined deadlines for the Hearing Committee report, SACUA review, written comments, and presidential recommendation.
Dr. Foerster’s March 18, 2019 memorandum argued that the dismissal proceeding implicated academic-freedom protections, including the reporting of suspected misconduct and related speech.
The May 2020 Bylaw expressly states that the dismissal process should never be employed to enable harassment or persecution, prohibited discrimination, or “the diminishment of academic freedom and free speech.”
On May 1, 2020, the Senate Assembly’s Tenure, Promotions, and Professional Development Committee submitted comments concerning the proposed Bylaw revision to the Board of Regents.
“We agree that the revisions are an improvement over many aspects of the existing policy.”
The committee nevertheless identified additional due-process concerns with the proposed revision.
The committee also proposed a statement of purpose declaring that tenure exists to protect academic freedom and that tenure-removal procedures should “at all times follow the accepted principles for due process.”
The May 2020 revision expressly addressed several procedural subjects Dr. Foerster had already placed into the 5.09 record during the 2018–2019 proceeding.
Under the prior Bylaw, the President could route the initial dismissal proceeding either to the affected faculty member’s school or college or to SACUA. Dr. Foerster challenged the decision to keep the initial hearing within Michigan Medicine and argued that the charges involved matters of general University concern warranting the SACUA process.
The May 2020 revision addressed that concern by requiring referral to SACUA and assigning SACUA responsibility for appointing the Hearing Committee.
Dr. Foerster had also challenged the substantive basis for dismissal under AAUP guidelines, arguing that the conduct identified in the Charge Letter was not directly and substantially related to professional fitness as a teacher or researcher. The revised Bylaw adopted materially more specific substantive grounds requiring misconduct in teaching or research, substantial and manifest neglect of duty, or personal conduct that substantially impairs institutional responsibilities.
The revised Bylaw also expressly:
- requires clear and convincing evidence;
- requires advance disclosure of all evidence to be used at the hearing;
- permits challenges to Hearing Committee members for potential bias;
- imposes defined procedural deadlines; and
- protects against the diminishment of academic freedom and free speech.
Dr. Foerster had already raised each of those procedural and substantive subjects in the University’s 5.09 record before the May 2020 revision.
The May 2020 revision was not merely a technical or stylistic amendment to Bylaw 5.09. The revision restructured fundamental features of the tenure-dismissal process, including the initial hearing framework, substantive grounds for dismissal, burden of proof, pre-hearing evidence disclosure, potential-bias challenges, procedural deadlines, and express protections for academic freedom and free speech.
The Senate committee reviewing the proposed revision subsequently described the changes as “an improvement over many aspects of the existing policy” and stated that tenure-removal procedures should “at all times follow the accepted principles for due process.”
That is the comparison the documentary record now permits.
The April 2011 Bylaw establishes the former school-level/SACUA split and the procedures governing the 2018–2019 Foerster proceeding.
The Senate committee reviewed the proposed Bylaw 5.09 revisions before adoption by the Board of Regents.
The revised Bylaw permits direct comparison with the April 2011 procedure and the procedural objections documented during the Foerster proceeding.
5.09 Documentary Chronology
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Selected Reporting
- Bradley Foerster Submits 140-Exhibit, 1,121-Page Documentary Chronology to FBI for Supervisory Review of the Investigation Involving Dr. Bradley Foerster, Dr. Myria Petrou, and Duaa Altaee
- From One FBI File to a Legislative Proposal: Peter and Maria Foerster Ask Senator Van Hollen's Office and Congressman Jamie Raskin to Consider a Uniform Administrative Framework for Federal Investigations
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- Bradley Foerster and Myria Petrou Send Ann Arbor Officials Documentary Chronology on AAPD and Related Federal Investigations — No Response Received
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Brad Foerster, MD PhD
Brad Foerster is a FOIA advocate documenting requests, transparency disputes, and accountability investigations involving public agencies, universities, police oversight, and Russia-Gate related inquiries. His work compiles original documents, timelines, and analysis of public records and institutional responses. Brad is also a board-certified radiologist, author of Town & Gown, and has published over 40 peer-reviewed articles. Brad lives in Potomac, Maryland with his family and is a member of the Montgomery County Medical Society and the Takoma Park U.S. & World History Book Club.