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Natelson-Law School Debate Churns On

By BETSY COHEN of the Missoulian
November 16, 2004

The Montana Commissioner of Higher Education has been asked to step in and resolve matters regarding the spring teaching appointment of University of Montana law professor Rob Natelson.

Natelson's attorney, Gregg Smith, filed the appeal recently asking the commissioner to clarify the university's Aug. 25 decision to allow Natelson to teach constitutional law, starting spring semester 2005.

Specifically, Smith is seeking a clearer understanding of how long UM will allow Natelson to teach the course in the future. The question arose after Smith read a series of October letters exchanged between Law School faculty and UM President George Dennison.

In reading Dennison's response to faculty concerns about the law course, Smith believed Dennison revealed changes to his original decision which weakened support of Natelson.

Dennison, however, said he has not changed his decision about the matter.

"Professor Natelson and his attorney can make an appeal if they choose," Dennison said. "But I haven't I changed anything."

The appeal is the latest development evolving from a summer grievance Natelson filed against his employer. The matter was heard in a 15-hour, two-day hearing in which Natelson, a tenured law professor who has twice run as a Republican for governor and led ballot-issue campaigns to limit taxes, claimed he was unfairly denied the opportunity to teach constitutional law because of his personal politics.

After reviewing the hearing officer's recommendations, Dennison handed down the final decision in favor of Natelson.

Although Dennison did not decide on Natelson's political discrimination charges, he agreed the Law School gave preference in the past to a few faculty members seeking internal transfers, and created a practice which the hearing officer described as "collegial preference."

Natelson was treated unfairly, Dennison said, when at the same time he asked to teach constitutional law, the school's Faculty Appointments Committee and law faculty at large voted to adopt a written policy to conduct a national search to fill all vacancies.

Dennison determined that Natelson would be allowed to teach constitutional law spring semester 2005. Dennison also determined that the faculty's new national search policy would not be applied to Natelson, but that an independent evaluation committee would be assembled to review Natelson's teaching performance during the course and determine if Natelson should teach the course on a permanent basis.

At the time Dennison made his decision, Natelson and Smith were satisfied with the outcome and believed the course of action was clear and the matter resolved.

However, as fall semester rolled on, Law School faculty members were concerned by the outcome of Natelson's grievance. They believed Dennison's resolution bypassed the school's tradition of faculty governance in deciding how to best use a vacated or new faculty line.

Law faculty expressed their concern in a letter to Dennison, in which 12 full-time professors signed.

Nothing in the faculty letter was surprising, Smith said. What he found unsettling was the ambiguity in Dennison's response.

Particularly worrisome were Dennison's statements: "In my decision, I focused on the fiscal year 2005 teaching assignment and not the new or newly written policy. ... I continue to believe that Professor Natelson has the right to fair and objective treatment. In that regard, I requested special procedures for the evaluation of his teaching constitutional law next semester. Nothing in my decision, however, precludes national searches to fill all vacancies - not just some - within the School of Law."

When Smith asked Dennison for clarification, and received a letter filled with what he believed to be more, equally vague verbiage, he filed his appeal to the commissioner's office.

"If Dennison were to have come back and said, 'Constitutional law is Professor Natelson's course to lose. If he teaches it competently and the committee supports him, then he'll have the course as a permanent assignment for however long he wants it,' I would have no reason to make the appeal," Smith said. "But in every response he's made since the original decision, Dennison has emphasized the need for a national search.

"That's a concern for us."

Commissioner Sheila Stearns said her office is just becoming familiar with the case.

"My hope is Commissioner Stearns will clarify Dennison's order so that Professor Natelson can move on and do what he does best, which is to teach law to law students in Montana," Smith said. "Hopefully Commissioner Stearns can resolve these questions once and for all."