University of Michigan Regents’ Bylaw 5.09 and Dr. Bradley Foerster — Tenure, Faculty Dismissal, and the Mandate That 5.09 “Should Never Be Used” for “The Diminishment of Academic Freedom and Free Speech”
Origins of University of Michigan Regents’ Bylaw 5.09
Regents’ Bylaw 5.09 has an important history at the University of Michigan. The procedure governing dismissal of tenured faculty emerged from one of the University's most consequential conflicts over academic and intellectual freedom.
In 1954, during the anti-Communist investigations of the McCarthy era, University of Michigan faculty members H. Chandler Davis, Mark Nickerson, and Clement Markert were called before the House Committee on Un-American Activities and refused to answer questions concerning their political associations. The University suspended all three. Davis and Nickerson were subsequently dismissed, while Markert was reinstated but censured and later left the University. Nickerson was a tenured associate professor of pharmacology in the Medical School.
The University's actions drew the attention of the American Association of University Professors (AAUP), a national organization that has played a central role in developing principles governing academic freedom, tenure, and faculty due process. In 1957, the AAUP censured the University of Michigan over the dismissals.
The University subsequently adopted a new Regents’ Bylaw 5.09 governing “Procedures in cases of Dismissal, Demotion, or Terminal Appointment.” The AAUP removed its censure in 1958 after adoption of the new procedure. University faculty governance has continued to identify that historical relationship: the dismissal procedures followed the AAUP sanction and were intended to ensure faculty participation in the dismissal process.
Decades later, the University returned to the events of 1954. In 1990, Senate Assembly formally expressed regret for the University's failure to protect the “fundamental values of intellectual freedom” and warned that those freedoms are vulnerable to social movements and public fears capable of suppressing dissent and unpopular ideas.
Although Bylaw 5.09 arose from the faculty-dismissal controversies of the 1950s, no tenured University of Michigan faculty member was ultimately dismissed through the procedure for approximately six decades. That changed in March 2020, when the Board of Regents dismissed tenured professor David Daniels following University findings involving sexual harassment and violations of its faculty-student relationship policy. Daniels denied the allegations. President Mark Schlissel concluded that the conduct was “inconsistent with the character of tenure” and constituted cause for dismissal under Bylaw 5.09.
Tenure, Academic Freedom, and the Threshold for Dismissal
The procedural protections surrounding dismissal cannot be separated from the purpose of tenure itself: protection of academic freedom. Tenure provides faculty members institutional independence to pursue research, teach, express ideas, question prevailing views and institutional decisions, and participate in academic governance without the continuing threat that disagreement or unpopular positions will cost them their appointments.
Termination of tenure therefore represents an extraordinary sanction, not ordinary employment discipline.
That principle is central to the AAUP framework. Termination of a tenured appointment for misconduct requires adequate cause, and the institution bears the burden of establishing that cause by clear and convincing evidence in the record considered as a whole. The relevant question is therefore not simply whether conduct was objectionable, inappropriate, or subject to criticism. It is whether the conduct is sufficiently serious to constitute adequate cause for terminating the protections of tenure.
The University of Michigan's faculty-dismissal process operated within this broader framework of tenure and academic-freedom protections before the current language of Bylaw 5.09 was adopted. University faculty-governance materials addressing 5.09 looked to AAUP principles, including the clear-and-convincing evidentiary standard.
Thus, although the version of Bylaw 5.09 governing the 2018–2019 Dr. Bradley Foerster Bylaw 5.09 proceeding did not itself contain the three-part formulation later added to the bylaw, that proceeding occurred within an established framework informed by AAUP principles concerning academic freedom, adequate cause, and faculty due process.
The 2020 Revision of Regents’ Bylaw 5.09
Following the 2018–2019 Dr. Bradley Foerster Bylaw 5.09 proceeding, the University substantially revised Regents’ Bylaw 5.09.
In May 2020, the Board of Regents expressly placed into the bylaw three substantive grounds for dismissal, demotion, or terminal appointment:
1. Demonstrated misconduct in teaching or research
2. Substantial and manifest neglect of duty
3. Personal conduct that substantially impairs the individual's fulfillment of institutional responsibilities, including acts involving moral turpitude or professional or scholarly misconduct
The revised bylaw further requires that a recommendation be supported by “clear and convincing evidence.”
It also expressly provides that the 5.09 process should never be used for political or religious persecution, prohibited discrimination, or “the diminishment of academic freedom and free speech.”
The language itself illustrates the demanding nature of the threshold: demonstrated misconduct; substantial and manifest neglect; conduct that substantially impairs institutional responsibilities; and clear and convincing evidence.
The 2020 revision thus placed directly into Bylaw 5.09 substantive grounds, an evidentiary standard, and an express protection of academic freedom that closely reflected principles already informing the University's faculty-dismissal framework.
Later SACUA Review Request
In 2022, Dr. Foerster returned to SACUA seeking a Faculty Hearing concerning alleged procedural and academic-freedom violations in the 2018–2019 Bylaw 5.09 proceeding, citing SACUA's earlier decision to grant Dr. Andrei Borisov a hearing after his resignation. SACUA declined Dr. Foerster's request; the response reflected in the record stated no reason for the denial.
The May 1, 2019 SACUA Review
Before beginning the chronological documentary record, a later exchange from the 2018–2019 Dr. Bradley Foerster Bylaw 5.09 proceeding provides important context for the threshold at issue.
By May 2019, the proceeding had reached review by a faculty committee associated with the University of Michigan Senate Advisory Committee on University Affairs (SACUA). During the May 1, 2019 SACUA Review Committee proceeding, Chair Karen Staller questioned Mr. Daniel Tukel, outside counsel representing Dean Marschall Runge and the Medical School in the 5.09 proceeding, about the basis for seeking dismissal of a tenured faculty member and the level of conduct necessary to support that sanction.
The relevant transcript pages are reproduced below.
May 1, 2019 — SACUA Review Committee Transcript, pp. 255–257
On page 255, Chair Staller first confirmed with Mr. Tukel that the proceeding was not based upon lack of fitness for duty. She then observed that the University was not alleging what she described as among the most serious transgressions for physicians and research scientists—medical malpractice or falsification or fabrication of research data. Mr. Tukel confirmed that those were not among the bases for the dismissal recommendation.
Chair Staller then asked:
“If so why should we understand this alleged pattern of bad behavior to rise to the level to support the termination of a tenured faculty member?”
On pages 256–257, Mr. Tukel responded that the dismissal recommendation was “not based on a single act or a discrete act” but on what the University regarded as a “broad pattern.” He identified alleged conduct involving court proceedings, accusations of criminal activity, grant administration and arbitration, the lapse of IRB approval, and recordings of colleagues and administrators as components of that pattern.
With that later exchange providing context for the threshold at issue, the documentary record now returns to the beginning of the 2018–2019 Dr. Bradley Foerster Bylaw 5.09 proceeding and proceeds chronologically through the grounds advanced for dismissal and their underlying records.
The Documentary Record Begins
The sequence begins with the University's August 26, 2015 Career Development Committee record, more than three years before the 5.09 hearings:
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
- Eva Feldman Documentary Chronology: 139 Exhibits on NIH R01NS082304, University Proceedings, and Federal Investigation — No Response Received
- Bradley Foerster and Myria Petrou Send Ann Arbor Officials Documentary Chronology on AAPD and Related Federal Investigations — No Response Received
- Timothy Lynch Documentary Chronology: 63 Exhibits on University of Michigan Office of General Counsel, University Investigations, and Law Enforcement — No Response Received
- Bradley Foerster and Myria Petrou Documentary Chronology: 8 Exhibits Document More Than Two Years of Efforts to Trace Bank of Ann Arbor's $1.4 Million Sheriff's Sale Credit Bid — No Response Received
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.