Academic Freedom and Tenure:

Northern State College (South Dakota)

I. Preliminary Statement
On August 17, 1966, Dr. Frank P. Kosik received a
"Memorandum of Appointment" as Associate Professor of
Political Science at Northern State College for the 1966-
1967 academic year and the first summer session of 1967.
The terms were set forth in a form document signed by
Dr. J. Howard Kramer, President of the College, and by
Dr. Kosik. This document includes the following state-
ment: "All laws of South Dakota and all policies, rulings
and regulations of the South Dakota Board of Regents re-
lating to employment in institutions under the adminis-
tration of said Board become and are conditions of
employment under this extension of contract." The
document contains no mention of any further steps to be
taken before the appointment can be regarded as final.
Dr. Kosik began to teach his classes on September 12,
1966. On September 23, 1966, he was advised in writing
that his appointment had not been approved by the
South Dakota Board of Regents and that his services
were terminated as of that date. He received compensa-
tion for the month of September only. Dr. Kosik then
sought the advice and assistance of the Washington Office
of the American Association of University Professors and,
following correspondence between the Washington Office
and officials of the College and the Board of Regents with
regard to the action taken, the appointment of an ad hoc
investigating committee was authorized by the General
Secretary.
The committee visited the campus of Northern State
College on May 8-9, 1967, and met with Dr. Kramer, Dr.
L. A. Clarke, Dean of the College, Dr. Russell Brock,
1
The text of this report was written in the first instance by
the members o the investigating committee. In accordance
with Association practice, the text was sent to the Association's
Committee A on Academic Freedom and Tenure, to the
teacher at whose request the investigation was conducted, to
the administration of Northern State College, and to other per-
sons directly concerned in the report. In the light of the sug-
gestions received, and with the editorial assistance of the Asso-
ciation's Washington Office staff, the report has been revised for
publication.
Chairman of the Division of Social Science, a number of
faculty members, and some students. The committee also
met with the Tenure Committee of the South Dakota
Board of Regents, consisting of Mrs. Maylou Amunson and
Mr. Richard Battey; and Mr. Elgie B. Coacher, the Exec-
utive Director of the Board. Subsequently, on May 13,
1967, the committee met with Dr. Kosik in Chicago. The
committee was extended courtesy and cooperation during
its investigation. This report is based on the evidence ob-
tained in these interviews and on documents furnished to
the committee. A number of facts are in dispute and,
where appropriate, conflicting evidence received by the
committee will be indicated.
Northern State College is a public institution, located
in Aberdeen, the third largest city in South Dakota. Its
primary function, as stated in its catalogue, is to prepare
students for public school teaching. It offers curricula
leading to the degrees of Bachelor of Science in Educa-
tion, Bachelor of Science, and Master of Science in
Education. In 1966-1967, it had a student body in excess
of 2600, most of them residents of South Dakota, and a
faculty of approximately 115. It is accredited by the
North Central Association of Colleges and Secondary
Schools and by the National Council for Accreditation of
Teacher Education. Governing responsibility for North-
ern State College, as for all public institutions of higher
education in South Dakota, is vested in the State's Board
of Regents of Education.
II. The Position of the South Dakota Board of
Regents Regarding Academic Freedom and
Tenure
The South Dakota Board of Regents is currently the
subject of AAUP censure, stemming from its action in the
1958 case of Professor W. W. Worzella, a tenured member
of the faculty at South Dakota State College who was dis-
charged in violation of accepted academic standards.
These standards were at that time also reflected in the
regulations then in force at South Dakota State College;
however, in reply to an inquiry from the College's Faculty
Association, the Board of Regents took the position that
these regulations applied only to the internal administra-
306 AAUP B UL L E T I N
tion of the College.
2
Following litigation in which the
South Dakota Supreme Court held that the regulations
were legally unenforceable, there was an Association in-
vestigation of the Worzella case, since the issue was not
regarded by the Association as one of legal obligation, but
of the acceptability to the academic community of the
standards applied by the Board. In 1961, the ad hoc inves-
tigating committee concluded that:
Until the Board of Regents itself subscribes to the principles
of academic freedom and academic tenure, those generally
accepted principles are not securely based in the State of
South Dakota.
In light of this history, the present committee feels that a
determination of the current attitude of the Board to-
wards academic freedom and tenure should be a basic
concern of this report.
The Board of Regents in 1966 promulgated a new ten-
ure policy, which has been a matter of discussion within
the state of South Dakota and between the Board and the
Association's Washington Office. This policy on tenure
contains no mention of academic freedom; rather, it de-
scribes tenure as a condition of security, granted in return
for the expectation of continued professional growth.
Under it, the Board reserves the right, notwithstanding
institutional proceedings, to effect dismissals of tenured
faculty upon its own motion. Moreover, the Board has re-
sisted the inclusion of any provisions governing nonten-
ured faculty subject to dismissal in the midst of a term
appointment (although one of the members of the Board
suggested that such regulations might be adopted in the
future). Dates of notice and numerous procedures are in-
adequate in terms of the 1940 Statement of Principles on
Academic Freedom and Tenure and the 1958 Statement
on Procedural Standards in Faculty Dismissal Proceedings.
It is the conclusion of this committee that the Board of
Regents' conception of academic freedom and tenure con-
tinues to differ significantly from the conception of aca-
demic freedom and tenure as it is generally understood in
the academic community. The regulations as revised
continue to show a lack of sensitivity to the essence of
academic freedom and to the position of a teacher. There
is an unwillingness to recognize that a teacher is not
merely an employee, but a person who has a special re-
sponsibility to explore and transmit knowledge. The deci-
sion of the South Dakota Supreme Court in the Worzella
case has been given the broadest possible interpretation as
requiring the Board to exercise extensive control over all
public instruction in higher education in the state.
3
The
2 See "Academic Freedom and Tenure: South Dakota State
College," AAUP Bulletin, Autumn, 1961.
3 Following the decision in that case, a faculty committee of
the State University of South Dakota School of Law undertook
to analyze the legal issues involved and concluded as follows:
The case must be considered as limited to deciding only
that a tenure policy would not be legally enforceable
against the Board of Regents unless the Board were to
delegate their powers, but that any such delegation of
power is prohibited by the statute defining the Board's
powers as well as by the State Constitution. Moreover, the
case cannot be construed as prohibiting the Board from
Office of the Attorney General of South Dakota, for exam-
ple, in response to a request from the Board, has stated in
an opinion:
The relationship between a professor or instructor at a col-
lege or university and those that employ him is nothing
more nor nothing less than an employer-employee relation-
ship.
In the present case, the Attorney General's Office has taken
the position that there was technically no contract be-
tween the Board and Dr. Kosik, and therefore "any claim
of violation of academic freedom and tenure cannot be
sustained." This view cannot be reconciled with recent
statements of the United States Supreme Court making
clear that public employment may not be denied or con-
ditioned on grounds violative of the First Amendment. As
emphasized recently by the Court in Keyishian v. The
Board of Regents of the University of the State of New
York et al., 385 U.S. 589,603 (1967),
Our Nation is deeply committed to safeguarding academic
freedom, which is of transcendant value to all of us and not
merely to the teachers concerned. That freedom is therefore
a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the class-
room. "The vigilant protection of constitutional freedom
is nowhere more vital than in the community of American
schools." The classroom is peculiarly "the marketplace of
ideas." The Nation's future depends upon leaders trained
through wide exposure to that robust exchange of ideas
which discovers truth "out of a multitude of tongues [rather]
than through any kind of authoritative selection."
The view expressed by the South Dakota Attorney Gener-
al's Office appears to represent the conception of the law
held by state officials in South Dakota and it is a belief
that colors the Board's attitude. It is a belief which
runs counter to the perspectives of the American com-
munity of higher education, which does not gauge aca-
demic freedom by the status of an official contract and
which sees in the status of its academic persons something
more than an employer-employee relationship.
It became clear to the ad hoc committee as a result of
its discussions that the Board of Regents was not aware
of a potential threat to academic freedom by the dismissal
of a nontenured teacher, especially one whose contract
had not formally been approved. The conception of a
teacher as an employee rather than a person having a
special responsibility in searching for knowledge dies hard.
The members of the Board whom the committee inter-
viewed specifically stated that it was not the Board's policy
to provide a hearing for a nontenured person. Further,
they stated that an institution could properly terminate
the services of a teacher prior to the expiration of a term
adopting and enforcing a tenure policy purely as a matter
of internal discretion; it cannot be interpreted as holding
that to pursue such a policy would be an abuse of dis-
cretion; and it cannot be interpreted as enjoining the
Board or the institutions under the Board's control from
continuing to give tenure policies the effects they are
designed to achieve.
"Academic Tenure at South Dakota's State Supported Colleges
and Universities," 5 S.D.L. Rev. 31, 32-3 (1960). See also Clark
Byse, "Academic Freedom, Tenure and the Law: A Comment
on Worzella v. Board of Regents," 73 Harv. L. Rev. 304 (1959) .
AUT UMN 1968 307
appointment if the administrative officials concluded that
it was desirable to do so. They suggested that a compre-
hensive policy applicable to all teachers, tenured and non-
tenured, might be promulgated in the future. At present,
however, it is clear that the nontenured teacher enjoys no
protection, substantive or procedural, from summary dis-
missal by the Board of Regents or by the administrative
officials of the institutions under its control.
III. Academic Freedom and Tenure at
Northern State College
The committee found that the conception of a teacher
as an employee, no more, no less, is reflected very strongly
at Northern State College. This was indicated by the Pres-
ident, by the Dean of the College, and by most of the
faculty members whom the committee interviewed. Few of
the latter hold the doctorate, and a number have entered
college teaching after serving as public school teachers.
Many faculty members refer to themselves as employees
and do not expect to have a voice in the government of
the institution. It is the responsibility of the administra-
tion and the Board to set policy for the institution; their
responsibility, as they see it, is to "do their job." Most of
those interviewed went out of their way to affirm confid-
ence in the administration. They expressed little if any
concern about Dr. Kosik's dismissal. The idea of granting
a hearing to a newly arrived and nontenured professor
seemed novel to them.
Most of the individuals interviewed by the ad hoc com-
mittee strongly insisted that the faculty possessed
academic freedom, and in one sense they appear to be
correct. The committee did not learn of any attempt
made by the administration to direct the manner in which
any teacher conducts his classes. It was reported that some
professors had in fact criticized the American political
and economic system in class. In a more significant sense,
however, it is doubtful if academic freedom exists or is
understood. Most of the individuals interviewed by the ad
hoc committee repeatedly said that the community of Ab-
erdeen and the state of South Dakota were conservative in
outlook, and the implication of their remarks appeared to
be that professors were obligated to conduct themselves
accordingly. While it was mentioned that some faculty
members had marched in a demonstration criticizing
American policy in Vietnam, the general tendency was to
recognize that a teacher who exceeded the limits of what
the local community found tolerable jeopardized his posi-
tion. It appeared that the limitations on the scope of
academic inquiry were voluntarily assumed rather than
coercively imposed, but with the threat of penalty remain-
ing in the background.
This lack of understanding of the scope of academic
freedom is most significant. Interviews with faculty mem-
bers indicated that the faculty generally supported the ad-
ministration in dismissing Dr. Kosik without knowing
much about the issues at stake. It showed little concern
about the absence of a hearing. As one faculty member put
it: "The decision should be made by the administration,
since they have the responsibility for this sort of thing."
While the committee was extended cooperation and cour-
tesy, there was no attempt to disguise hostility over the
fact that "outsiders" were questioning what happened at
the College. Some of the faculty members interviewed im-
mediately reported the content of the interviews to the
Dean. Dr. Kosik was viewed as an "outsider," disturbing
an atmosphere that one faculty member described as "con-
genial." It is in this context that the facts of the case must
be considered.
IV. A Chronology of Events
Dr. Kosik's association with Northern State College
lasted a little over a month, and he taught classes for only
two weeks. A brief chronology of the events can be sup-
plied:
August 17, 1966 -
September 6, 1966 -
September 12, 1966-
September 14, 1966
September 15, 1966-
September 16, 1966-
September 19, 1966-
September 22, 1966-
September 23, 1966-
Dr. Kosik and President Kramer
execute the memorandum of ap-
pointment.
Dr. Kosik undertakes duties in
connection with registration.
Classes begin.
Complaints against Dr. Kosik are
made to Dean Clarke, primarily
from students in his American
Government class. Some students
seek to drop the class, but are
refused permission.
Dr. Brock, the head of the Divi-
sion of Social Science, discusses
the complaints with Dr. Kosik. A
letter is sent to the President of
the Board of Regents by an inter-
ested citizen.
Dean Clarke discusses the com-
plaints with Dr. Kosik.
A conference between President
Kramer, Dean Clarke, Dr. Brock
and Dr. Kosik is held. President
Kramer tells Dr. Kosik that, in
his judgment, the Board of Re-
gents will not approve his con-
tract if he continues to act as he
has. There is disputed testimony
as to whether President Kramer
said he would recommend ap-
proval to the Board.
The Board of Regents meet in
regular session in Madison, South
Dakota, with the presidents of the
colleges and universities present.
From Aberdeen, Dean Clarke
calls President Kramer, saying
that complaints against Dr. Kosik
by students are increasing. Presi-
dent Kramer, after informal dis-
cussions with the Regents, decides
not to recommend appointment.
The Regents indicate they will
not approve the appointment if
308
A A UP BULLETIN
it is placed before them for con-
sideration and President Kramer
deletes Dr. Kosik's name from the
agenda. Dean Clarke hands Dr.
Kosik a letter advising him that
his appointment was not ap-
proved and that his services are
terminated.
V. The Complaints against Dr. Kosik
Since there was neither a specification of charges nor a
hearing nor any of the other elements of accepted aca-
demic due process, it cannot be stated with certainty pre-
cisely why Dr. Kosik's appointment was not approved.
However, it is agreed by all that the decision resulted
from what happened in his classes between September 12
and September 23. As to the specific reasons for the termi-
nation of Dr. Kosik's services, the investigating committee
discussed this matter with administrative officers and
faculty members at Northern State College. It also exam-
ined affidavits of complaints prepared, apparently upon
invitation, by six students following Dr. Kosik's departure.
Dr. Kosik, who asserts that other students had intervened
in his behalf, was given no opportunity to see or com-
ment upon these affidavits. The committee concluded that
the grounds for the termination of Dr. Kosik's services fall
into three main categories: (1) alleged attacks on the
American system of government and on American (and
especially Midwestern) culture; (2) alleged use of profan-
ity and vilification of students; and (3) alleged attacks on
the College administration and faculty colleagues. There
were indications that Dr. Kosik's appointment was re-
jected not so much because of any single reason as because
of the sum of the complaints. One faculty member con-
cluded that the action against Dr. Kosik was taken "be-
cause he was not compatible with what was expected
here." Let us consider each of the abovementioned
categories of the complaint.
A. Alleged Attacks on the American System of Gov-
ernment and American Culture
The "un-American" declarations are as follows (ex-
cerpts have been taken verbatim from student affidavits
submitted to the Washington Office by the Executive
Director of the Board of Regents):
He hated the Midwest, hated our climate; the hog stench
as he traveled in the country. . . . The patriotism we show
our flag nauseates him. He is not impressed with the ad-
vances we have made in science or medicine. The American
way of life is that of dishonesty and distortion according
to him.
Statements said by Dr. Kosik: "American lawyers are shy-
sters and judicial justice is one of vengeance."
He said that there is nothing in this land that is good.
He said that we were going to study how to get rid of the
American government.
Dr. Kosik lectured against our country. Stating "there is
nothing good in America." . . . He talked against our United
States flag. Stating the sight of our flag "nauseated hjm."
The U.S. flag should fly under the United Nations' flag.
With respect to the above statements, when they were
shown to him by the investigating committee, Dr. Kosik's
basic position was that his remarks were taken out of con-
text. An example of this, according to Dr. Kosik, is that
his quoted remark about the American flag was made
within the context of an introductory lecture devoted to
the demonstration of the necessity of courageous and up-
right objectivity in the study of politics and, specifically, in
the context of his remarks on the dangers of concretized
symbols, i.e., on the lethal substitution of the symbolic
(ideological) for the real.
4
Both Dr. Kosik's teaching methods and his temperament
seem to go far in explaining the comments he made. He
stated to the committee that he considers it the responsi-
bility of the political science teacher to denationalize the
subject, to assume nothing but to question everything. He
offered the belief that students must be disabused of patri-
otism and emotion before they can take a universal and
scientific view of their subject. And he made clear that he
does not shrink from controversy in dealing with ideas he
deems vital. Dr. Kosik acknowledged that his teaching
methods and the content and organization of his class-
room work might not be commonplace, but he insisted
they were true to the facts and animated by a quickening
sense of urgency born of the fact that the nation was at
war.
The climate at Northern State College goes far in ex-
plaining the force of the reaction to Dr. Kosik's classroom
performance. The students were unprepared for a man of
foreign birthDr. Kosik was born in Czechoslovakia but
is a naturalized citizenwho made strong statements
about controversial issues. Clearly, his teaching did not
meet the expectations of some of the students or of the
administration. One student who prepared an affidavit
said, "he had taught absolutely nothing from the book"
while in class and this observation is noted in other
affidavits. Dr. Kosik told his classes that they would com-
prehend him in time, and he says he appealed to Presi-
dent Kramer to give him a month and his classes would
understand him.
Actually, and in contrast to what is indicated in the
prepared affidavits, there is evidence that Dr. Kosik may
have been an effective and a popular teacher. The ad hoc
committee interviewed four students selected by the ad-
ministration who were not among those who had pre-
pared affidavits, two of whom had been in Dr. Kosik's
classes. All testified that Dr. Kosik had made an excellent
impression as a stimulating teacher and that he had at-
tracted to his lectures a number of persons not enrolled
in his courses for credit.
* Dr. Kosik states further that his remark reportedly re-
ferring to getting "rid of the American government" was
"made during the discussion on freedom as self-government
and the tendency inherent in all governments to obliterate it
through the extension of its powers through the assumption
of new responsibilities and, therefore, of controls," and that the
statement "' there was nothing good in America,' is only the
introductory part of the thought that the good in politics is
and must always be located in the subjects alone and that the
governments are never justified in giving precedence to the
essentially neutral existential context to man."
AUTUMN 1968 309
B. Alleged Use of Profanity and Vilification of Stu-
dents
It was alleged in the student affidavits that in the class-
room Dr. Kosik employed profanity and made personal
attacks on students. Dr. Kosik admits to using strong lan-
guage but asserts that his teaching did not involve profan-
ity. It is impossible to ascertain the validity of these
allegations in the absence of a proper hearing. On the is-
sue of profanity and vilification, the ad hoc committee
questioned two students who had been in Dr. Kosik's
classesa sophomore woman in American Government
and a senior man in Comparative Government. Neither
proved aware of any allegations of profanity and neither
recalled his using language that shocked them. Both ex-
pressed great admiration for Dr. Kosik's ability as a
teacher, and one had told his parents about the class
because he had found it so interesting.
C. Alleged Attacks on College Administration and
Faculty Colleagues
It is undisputed that Dr. Kosik had no high regard for
either his colleagues or the officials of the College. Accord-
ing to student affidavits, he said the following:
At the September 20 lecture Dr. Kosik called Northern
an imprisonment. He said he would not serve "under a
Hitler, Stalin or a Kramer." He called Dr. Kramer "an old
man living in the past." We had a "Kramer regime" at
Northern. I feel these are very unAmerican statements.
His colleagues are beyond redemption.
Dr. Kosik acknowledges having made these remarks. He
notes, however, that the comment about President Kramer
followed his September 19 meeting with him at which Dr.
Kosik gained the impression that his contract would not
be approved. On September 20, Dr. Kosik says he in-
formed his class that he was in danger of being dismissed
and discussed the problem he was having with the admin-
istration. The committee does not think these remarks
appropriate, but whether they should justify dismissal, or
whether they actually became a substantial factor in the
decision to dismiss, is questionable. There are some
grounds for concluding that Dr. Kosik became more vehe-
ment in his language when he learned that he was going
to be dismissed, and that his comments on the administra-
tion either dated from this time or became more intense
then.
A Postcript on the Complaints
It appears, then, that the above three categories of
charges constituted the case against Dr. Kosik. Each of the
three received mention as the reason for the dismissal by
some of the faculty members interviewed by the ad hoc
committee, and both the administrative officials and the
members of the Board of Regents mentioned all three to
the committee without singling out one as the primary
cause. Still, there is reason to conclude that Dr. Kosik's
criticisms of the United States at least precipitated the ac-
tion against him. Very shortly after the beginning of
classes on September 12, a student in his American Gov-
ernment class informed her father, who was active in a lo-
cal veterans' organization post, of what she had heard in
class. The father contacted an attorney in Redfield, South
Dakota, who reported in a letter to the President of the
Board of Regents what he described as typical statements
made by Dr. Kosik in class. A copy of this letter was fur-
nished the ad hoc committee by the administration. A
number but not all of these quoted statements were criti-
cal of America. The writer was of the opinion that "a
professor of this nature" could well be responsible for stu-
dent demonstrations, and he added: "I would prefer this
would be handled fairly quietly unless it's absolutely nec-
essary that the matter be brought out public. I know the
. . . [veterans' organization] could come out with an alle-
gation of this type of a teacher in the system, which could
have an adverse effect on what I consider one of the better
schools in the state and could have other ramifications."
The Redfield attorney sent a copy of this letter to Presi-
dent Kramer, whose reply of September 16 (also submit-
ted to the ad hoc committee) indicates agreement on the
undesirability of Dr. Kosik as a member of the faculty but
on grounds that are general rather than specific. President
Kramer wrote:
This situation distresses me a great deal. I am not sure
just exactly what action we will take under the circum-
stances, but you may be assured that as far as we are con-
cerned, this gentleman has no support whatsoever and we
will take whatever steps are necessary to curb the sort of
things that he is apparently doing. I am sure that you
realize that I do not, nor do I believe any of the rest of
the staff on the campus, approve this sort of activity. It is
unfortunate that we get this kind of person on our faculties,
but in these days of extreme shortage of qualified faculty
members and in view of the fact that staffing is a highly
competitive problem, it is inevitable that errors will some-
times be made.
You may be assured that there will be no delay in tackling
this problem.
VI. Dr. Kosik's Dismissal
At the outset, it is necessary to emphasize that, in the
view of the Board of Regents, technically Dr. Kosik was
not dismissed. The Board takes the position that legally
there had never been a contract of employment, since
only the board could conclude a valid contract and it had
not done so. The Office of the Attorney General of the
State of South Dakota, asked for its opinion by the Board,
advised that "as there was no contract of employment,
and at most an offer [by Kosik] to enter a contract of em-
ployment, which offer was rejected, the several claims
made by Dr. Kosik and the Association [AAUP] must of
necessity be found untenable and erroneous." It was also
stated by the Attorney General's Office that, in the ab-
sence of a contract, there could be no claim of a violation
of academic freedom. Apart from the question of the va-
lidity of the Attorney General's position with respect to
the existence of a legally enforceable contract, under ac-
cepted academic standards Dr. Kosik had in fact entered
an appointment, which was not described as subject to
Board approval in the memorandum that he and the
President signed, and he had actually begun serving as a
member of the teaching faculty. Also, the conception of
academic freedom as dependent upon a technically or
formally entered contract is completely unacceptable.
810 A A UP B UL L E T I N
Apart from legal considerations, however, the members of
the Tenure Committee of the Board agreed that the con-
tract would have been approved pro forma had it not
been for what had occurred during the first several days
of classes.
The action of the board must therefore be considered
as a dismissal within the meaning of the 1940 Statement
of Principles on Academic Freedom and Tenure and the
1958 Statement on Procedural Standards in Faculty Dis-
missal Proceedings. Dr. Kosik received a one-year
appointment from the President. On this basis, he had en-
tered into his duties. He was, in effect, discharged prior to
the expiration of the year for what had happened during
the first few days of classes. This is exactly the kind of sit-
uation contemplated by the 1940 Statement and the ac-
tion of the Board amounts to a dismissal within the
meaning of the Statement. The relevant provision of the
1940 Statement is that:
. . . dismissal for cause of a teacher previous to the expiration
of a term appointment, should, if possible, be considered by
both a faculty committee and the governing board of the
institution. In all cases where the facts are in dispute, the
accused teacher should be informed before the hearing in
writing of the charges against him and should have the op-
portunity to be heard in his own defense by all bodies that
pass judgment upon his case. He should be permitted to
have with him an advisor of his own choosing who may act
as counsel. There should be a full stenographic record of
the hearing available to the parties concerned. In the hear-
ing of charges of incompetence the testimony should include
that of teachers and other scholars, either from his own or
from other institutions.
There was no attempt to comply with the provisions of
the 1940 Statement in Dr. Kosik's case.
Dr. Kosik began teaching his classes on Monday, Sep-
tember 12. By Wednesday, September 14, complaints
against him had been made, primarily to Dean Clarke.
On Thursday, September 15, Dr. Russell Brock, the Chair-
man of the Division of Social Science, conferred with Dr.
Kosik. According to Dr. Kosik, "I was approached by Dr.
Brock, who, to my surprise, voiced what could not have
been a just and honorable criticism of my work but a cu-
rious and timidity frightened reaction to some second-
hand information or rather covert denunciation and per-
haps some undue intervention of certain elements in the
academic process." Dr. Brock maintains that he told Dr.
Kosik of the statements attributed to him and discussed
with him the substance and method of his teaching. He
says he suggested that Dr. Kosik would have more success
with his classes and lose fewer students if he moderated
his language. Dr. Kosik asserts that there was no mention
of his language in this discussion. He states that he urged
Dr. Brock to attend one of his classes. It is agreed that
neither Dr. Brock nor any other member of the faculty or
administration ever visited Dr. Kosik's classes. On Friday,
September 16, Dr. Brock discussed the matter with Dean
Clarke, and they then concluded that, in view of the 1940
Statement, the services of Dr. Kosik should not be termi-
nated. Dr. Brock took the position throughout that Dr.
Kosik's contract should have been approved and that he
should have been permitted to teach for the year. His
affidavit states, "I did not believe that a teacher's compe-
tence or character should be judged after-only one week of
classes, not did I wish our college to gain a reputation as
a place where conformity of opinion was enforced."
Later in the day on September 16, Dean Clarke sum-
moned Dr. Kosik to a conference. The two men agree
that the following took place: Dean Clarke advised Dr.
Kosik that students had complained about Dr. Kosik's
failure to teach the subject matter expected in courses for
which students had enrolled and about his manner of
presenting material. Dean Clarke reportedly told Dr. Ko-
sik that he did not have to teach from the textbook, but
did suggest that he "establish rapport" with his students.
Dr. Kosik invited Dean Clarke to attend his classes. Dr.
Kosik stated it to be his impression that this meeting "re-
solved all difficulties and satisfactorily answered all ques-
tions."
On Monday, September 19, President Kramer sum-
moned Dr. Kosik to a meeting at which Dean Clarke
and Dr. Brock were also present. There is a substantial
dispute as to what occurred. Dr. Kosik takes one position
and President Kramer, supported by Dean Clarke and Dr.
Brock, takes another. According to Dr. Kosik, he de-
manded that President Kramer defend his freedom to
teach his subject "according to his conscience and best
knowledge" and President Kramer's reply was negative.
President Kramer, on the other hand, contends that Dr.
Kosik wanted him to approve the substance of what he
was teaching. This he refused to do, but said that he
would defend Dr. Kosik's liberty to teach. The partic-
ipants agree to having discussed the fact that Dr. Kosik's
contract had not yet been approved by the Board of
Regents. In the words of President Kramer, as recorded
by the investigating committee:
At that time, I clearly pointed out to Dr. Frank Kosik
that his contract was not valid until it had been approved
by the South Dakota Board of Regents; I also pointed out
that unless he discontinued his character assassination of
students and administration, discontinued his use of inap-
propriate language in the classroom, and got down to doing
the job for which he was hired, namely, the teaching of
political science, that the probabilities were that it would
not be approved.
According to Dr. Kosik, the discussion focused upon the
substance of what he had been saying in the classroom
rather than the language which he employed. President
Kramer says that it was still his intention to recommend
approval and that he so advised Dr. Kosik. Dr. Kosik,
however, contends that President Kramer said that he
would not recommend approval and that this was the first
time in his career such a thing had happened. Dr. Kosik
states that he demanded a hearing before the Regents and
that President Kramer assured him that he would get a
hearing. President Kramer reports having told Dr. Kosik
that he could ask for a hearing, and Dr. Clarke having
said he would take Dr. Kosik to Madison, where the
Board would be meeting. Dr. Kosik did not address a re-
quest for a hearing directly to the Board and none was
offered.
On Thursday, September 22, President Kramer was in
AUT UMN 1968 311
Madison along with the heads of the other state colleges
and universities for the Board's regular meeting. The ap-
proval of Dr. Kosik's contract was on the agenda under
Northern State College for the next day. President Kra-
mer informed the ad hoc committee that on Thursday he
spoke informally to some members of the Board, suggest-
ing that the contract be approved and that formal dis-
missal proceedings be initiated. According to him, there
was no response to this suggestion. He notes someone then
having told him it was being said that, if Kramer did not
fire Kosik, then Kramer himself should be fired. President
Kramer reports having received a call late Thursday after-
noon from Dean Clarke, who said "things were getting
worse by the minute" and that the contract should not be
approved. According to President Kramer, he decided that
evening not to recommend approval. On Friday morning,
the agenda for Northern State College was considered.
There was no suggestion at any time during the meeting
that Dr. Kosik be given a hearing. The Executive Director
of the Board stated to the investigating committee that
the Board's minutes for Friday, September 23, show that
the Board would not approve the appointment of Dr. Ko-
sik, that President Kramer asked permission to delete the
matter from the agenda, and that he was directed to do
so. This done, President Kramer then telephoned Dean
Clarke, and a letter announcing termination of his serv-
ices was issued to Dr. Kosik over Dean Clarke's signature
that same day.
It is not necessary to speculate whether responsibility
for the action taken against Dr. Kosik should be assigned
to the Board of Regents or to the College administration
or to both. It is clear that President Kramer and Dean
Clarke had come to favor the action. It is equally clear
that the Board of Regents would not have approved the
appointment. Furthermore, neither President Kramer nor
Dean Clarke nor the Board took any move to provide a
hearing for Dr. Kosik. All were in agreement as of Sep-
tember 22 that Dr. Kosik's appointment should not be
approved and that his services should be terminated im-
mediately. All parties concerned went out of their way to
make this point to the investigating committee.
One can only speculate on what would have happened
if the contract had been approved prior to the time that
Dr. Kosik began teaching. (It was only because he was en-
gaged late in the year that the matter of approval of the
contract did not come before the Board until the meeting
on September 22.) Members of the Committee on Tenure
did state that it is not the policy of the Board to give a
hearing to nontenured persons and that a person could be
summarily dismissed for cause by the administration or by
the Board prior to the expiration of his contract. As
pointed out previously, under the policy of the Board of
Regents only tenured persons are entitled to a hearing
prior to dismissal for cause. The Board could have de-
ferred approval until the charges were appropriately
investigated, but apparently this alternative was not con-
sidered. President Kramer and Dean Clarke have taken
the position that it is for the administration of the Col-
lege to determine whether a person is competent to con-
tinue teaching.
Nonetheless, the fact that the contract had not yet been
formally approved is an element in the picture. President
Kramer has suggested to us that the Board may have
feared incurring financial liability to Dr. Kosik by approv-
ing the contract. Equally significant may have been the
view, as reflected in the opinion of the Office of the Attor-
ney General, that the Board had the right to disapprove
the contract, and by doing so could avoid any question of
dismissal. Likewise, the opinion of the State Supreme
Court in the Worzella case may have influenced the
Board's decision. The absence of existing procedures re-
garding nontenured persons may also have been a factor
influencing the Board's decision to act summarily. There-
fore, while the action of the Board is to be considered a
dismissal, the fact that Dr. Kosik's contract had not been
officially approved no doubt influenced the reasoning
which led to that action.
We thus have a situation where a new teacher, with a
contract not yet formally approved, goes to a highly con-
servative area and, in his first days of teaching, is accused
of attacking the United States political system and the
American way of life, of using profanity, and of disparag-
ing the College administration and his colleagues. The
institution and its governing board have not seen fit to
adopt procedures calling for due process in the dismissal
of nontenured persons. The President and the Dean of
the College favor terminating the services of the teacher.
There is perhaps a concern with avoiding legal liability
and the belief that this can be done by refusing to ap-
prove the contract. There may also be the belief that
refusing to approve the contract will avoid any question
of dismissal. Furthermore, there is little sensitivity to the
nature of academic freedom, to the special responsibility
of the teacher in the search for truth.
The Board of Regents has asserted that it acted prop-
erly. It is reinforced by legal interpretation stressing its
absolute power over the public institutions in the state.
The members of the Board, President Kramer, and Dean
Clarke remain convinced that they did the "right" thing.
When tested, however, against the principles contained
in the 1940 Statement and the generally accepted princi-
ples of academic freedom and academic due process, it
is abundantly clear that the action taken against Dr.
Kosik was improper and violative of those principles.
Dr. Kosik was removed from a teaching position two
weeks after the beginning of classes. No hearing was held
either before a faculty committeeno such committee ex-
isted at Northern State College, and the faculty was not
formally or directly involved in the case at allor before
the Board of Regents. It is, therefore, impossible to de-
termine precisely why he was dismissed, what was con-
sidered by the members of the Board in arriving at their
decision, or what evidence or considerations Dr. Kosik
might have produced in his own defense.
There is every reason to believe that the political
views expressed by Dr. Kosik in the classroom had a
significant effect upon the decision to dismiss. In a sub-
sequent reconsideration of the Kosik case by the Board
of Regents following communications from the Associa-
tion's Washington Office, the Board's position was then
312 AAUP B UL L E T I N
stated by its Executive Director to be as follows:
The South Dakota Board of Regents met on January 19,
20, 1967, at which time they again reviewed the Kosik case.
After further study and review, it is the opinion of the
Board that in this case there is no issue of academic prin-
ciple. The only principles listed are those of basic morality,
decency, and allegiance to those principles for which many
Americans fought and died.
Basic to the principle of academic freedom is the freedom
to disagree with principle, no matter how venerated. If
a hearing had been held, it could have been established
whether or not Dr. Kosik's dismissal was due to what
he was trying to teach.
If, on the other hand, the use of profanity and vilifica-
tion was a substantial factor in causing the dismissal, the
absence of a hearing is even more significant. The picture
painted by the administration, based on reports from
students, was that Dr. Kosik was using shocking and
obscene language. Dr. Kosik denies that he employed such
language. Student affiants claimed that he did, but stu-
dents whom the committee interviewed did not recollect
that they were "shocked" by his language. A hearing
could have determined the kind and extent of language
Dr. Kosik was using in the classroom. A hearing could
have determined the seriousness of this charge. The same
is true with respect to the charge of attacks on the ad-
ministration and colleagues. In the absence of a hearing,
the accuracy and seriousness of such charges cannot be
determined.
VII. Conclusions
The actions of the administration of Northern State
College and the South Dakota Board of Regents relating
to Dr. Frank P. Kosik constitute a severe violation of the
principles and procedures set forth in the 1940 Statement
of Principles on Academic Freedom and Tenure and the
1958 Statement on Procedural Standards in Faculty Dis-
missal Proceedings. This case demonstrates the necessity
for those procedures that comprise academic due process.
If such procedures had been followed, either Dr. Kosik
would not have been dismissed or the precise grounds
and the evidence for dismissal would have become known.
The failure of the administration of Northern State
College and the South Dakota Board of Regents to act
in accordance with academic due process cannot be
justified.
It is difficult to say that the generally accepted prin-
ciples of academic freedom and tenure are any more
secure in South Dakota's public institutions of higher
education today than they were at the time of the As-
sociation's 1961 investigation which led to censure of the
Board of Regents. The current regulations of the Board
of Regents are mute on academic freedom, procedurally
inadequate on due process for tenured faculty members,
and again mute on due process for those without tenure.
The case of Dr. Kosik indicates that the principles of
academic freedom and tenure are still unable to with-
stand an actual test in South Dakota's public colleges and
universities. If the experience at Northern State College
is any example, the principles seem hardly even to be
understood.
Winston U. Solberg (History), University of Illinois,
Chairman
Robert A. Sedler (Law), University of Kentucky
Investigating Committee
Committee A on Academic Freedom and Tenure has
by vote authorized publication of this report in the
AAUP Bulletin:
Sanford H. Kadish (Law), University of California,
Berkeley, Chairman
Members: Richard P. Adams (English), Tulane Uni-
versity; Bertram H. Davis (English), Washington Office,
ex officio; David Fellman (Political Science), University
of Wisconsin; William P. Fidler (English), Washington
Office; C. William Heywood (History), Cornell College;
William J. Kilgore (Philosophy), Baylor University;
Walter P. Metzger (History), Columbia University; C.
Dallas Sands (Law), University of Alabama; Victoria
Schuck (Political Science), Mount Holyoke College.
AUT UMN 1968 313