ED 396 608

AUTHORTITLE

INSTITUTION

SPONS AGENCY

REPORT NOPUB DATECONTRACTNOTE

AVAILABLE FROM

PUB TYPE

EDRS PRICEDESCRIPTORS

ABSTRACT

DOCUMENT RESUME

HE 029 233

Baez, Benjamin; Centra, John A.

Tenure, Promotion, and Reappointment* Legal and

Administrative Implications. ASHE-ERIC Higher

Education Report No. 1.Association for the Study of Higher Education.; ERIC

Clearinghouse on Higher Education, Washington, D.C.;

George Washington Univ., Washington, DC. Graduate

School of Education and Human Development.

Office of Educational Research and Improvement (ED),

Washington, DC.ISBN-1-878380-65-6; ISSN-0884-004095

RR93002008214p.; For a digest of this report, see HE 029

232.ERIC Clearinghouse on Higher Education, One Dupont

Circle, N.W., Suite 630, Washington, DC 2036-1183

($18 plus $3.75 postage).Information Analyses ERIC Clearinghouse Products

(071)

MF01/PC09 Plus Postage.*Academic Freedom; Affirmative Action; Collective

Bargaining; College Faculty; *Court Litigation; *Due

Process; Grievance Procedures; Higher Education; Peer

Evaluation; *Public Colleges; *Tenured Faculty

This book addresSes the legal implicatiors of

reappointment, promotion and tenure decisions bearing on college

faculty with an emphasis on how understanding the relevant legal

principles can inform practice. It uses scenarios and cases to

illustrate thi conflict between institutional and individual rights

and the potential legal problems associated with employment

contracts, due process requirements, academic freedom, employment

discrimination, affirrative action, and peer review. Specific issues

addressed include: the role of the courts in reappointment,

promotion, and tenure decisions; reasons tenure is the subject of

numerous faculty lawsuits; the contents of the faculty employment

contract; constitutional guarantees of due process for untenured

faculty members; how the courts balance institutional and individual

First Amendment rights; protection of faculty from illegal

discrimination; the legal boundaries of affirmative action; the

courts' concern for balance between the confidentiality of the peer

review system and protection from discrimination; and the liability

exposure of administrators and faculty members participating in the

peer review process. Individual chapters address: (1) tenure in

American higher education; (2) the faculty employment contract; (3)

constitutional rights in employment decisions; (4) employment

discrimination; (5) affirmative action, diversity, and individual

rights; (6) legal implications of peer review; and (7)

recommendations for policy anti practice. A list of relevant court

cases is attached. (Contains 100 references.) (CK)

: 1995 Report OneASHE-ERIC Higher Education Reports

'Tenure, Promotion,and Reappointment:Legal and Administrative Implications

Benjamin Baez and John A. Centra

tss.

cr

BEST COPY AVAILABLE2

c+,

iU S DEPARTMENT OF EDUCATION 1Moe el Educational Research and improvomont

1TED CATIONAL RESOURCES INFORMATIONCENTER (ERIC)

his document has been reproducod as

Lq received trom the porson or organization

Originating it

CI Minor changos have been made toimprove reproduction quality

Points of view or opinions stated in thisdocument do not necessarily representofficial OERI position or policy.

Tenure, Promotion, and Reappointment:Legal and Administrative Implications

by Benjamin Baez and John A. Centre'

ASHE-ERIC Higher Education Report A. 1. 1995

Prepared by

ERIC

In coopenttion with

ASI-1*

hiblisbed

onnlve yWASHINGTON DC

Clearinghouse on Higher EducationThe George Washington University

Associatim ihr the Studyql I ligber Ech tcatioit

Gaduate School of Education and Human netvlomnentThe Geotge WashirOon

jonalban Fyi.. series Filitur

Cite asBaez, Benjamin, and John A. Centra. 1905. Tenure,Promotion, and Reappointment: Legal and AdministrativeImplications. ASHE-ERIC Higher Education Report No. 1.Washington, D.C.: The George Washington University.,Schoolof Education and Human Development.

Library of Congress Catalog Card Number 96-76556ISSN 0884-0040ISBN 1-878380-65-6

Managing Editor Lynne J. ScottManuscript Editor Alexandra RockeyCover design by Michael David Brown, Rockville, Maryland

The ERIC Clearinghouse on Higher Educaton invites individ-uals to submit proposals for writing inonographs for theASHE-ERIC Ihgher Education Report series. Proposals mustinclude:1. A detailed manuscript proposal of not more than five

pages.2. A chapter-by-chapter outline.3. A 75-word summary to he used by several review commit-

tees for the initial screening and rating of each proposal.4. A vita and a writing sample.

ERIC Clearinghouse on Higher EducationGraduate School of Education and Human DevelopmentThe George Washington UniversityOne Dupont Circle, Suite 630Washington, DC 20036-1183

This publication was prepared partially with funding fromthe Office of Education Research and Improvement, U.S.Department of Education, under contract no. ED RR-93-002008. The opinions expressed in this report do not neces-sarily reflect the positions or policies of OERI or theDepartment.

ei

EXECUTIVE SUMMARY

Tenure, Promotion, and Reappointment focuses on the legalimplications of reappointment, promotion, and tenure deci-sions, with an emphasis on how understanding the relevantlegal principles can inform practice. Through the use ofscenarios and cases, we illustrate the conflict between insti-tutional and individual rights and the potential legal prob-lems associated with employment contracts, due processrequirements, academic freedom, employment discrimina-tion, affirmative action, and peer review. Suggestions areoffered for minimizing litigation and protecting institutionaland individual rights. Following are some of the specificquestions addressed.

What has been the role of courts in reappointment,promotion, or tenure decisions?Institutions have a great deal of autonomy and discretion inmaking reappointment, promotion, or tenure decisions.Courts are reluctant to substitute their judgments for those ofacademic professionals. Recent legislation permits the sub-mission of employment-discrimination cases to juries, per-haps making it likely that this reluctance may wane. At anyrate, courts are required to intervene in these matters whenthe individual rights of faculty members are threatened. Incases involving discrimination and the First Amendment.courts seem to grant less deference to institutions than inother types of cases.

What is tenure, and why is it thesubject of many faculty lawsuits?Tenure was estabfished to protect facuk-, members'academic freedom and to provide enough financial securityto attract able men and women to the profession. Courtsalso have established that tenure, once acquired, is a proper-ty interest protected by the Constitution when conferred bypublic institutions. Although cases by faculty membersagainst colleges and universities involve reappointment,promotion, and other issues, the most prominent cases dealwith tenure denial. While tenure has benefits for the institu-tion and the faculty members, it also has financial conse-quences for the institution, especially (hiring times ofretrenchment. Faculty members denied tenure suffer finan-cial, professional, and emotional consequences. As a result,lawsuits in this area are likely to increase.

'Allure. Promotion. and Reappointment iii

What constitutes the faculty employment contract?The faculty contract of employment refers not only to theletter of appointment but to other professional and institu-tional policies governing reappointment, promotion, andtenure decisions. Institutional policies are included in thefaculty handbook, while American Association of UniversityProfessors policy statements, especially the 1940 Statementof Principles on Academic Freedom and Tenure, containprofessional policies. Courts also have looked to institution-al practices and customs and the oral, written, and impliedassurances of key administrators to determine the rights andresponsibilities of the parties when the language of the con-tract is unclear, ambiguous, or inconsistent. Collective-bar-gaining agreements are important types of contracts, andthey may govern how faculty members are reappointed,promoted, or tenured. Federal labor law, which governsprivate collective bargaining, excludes faculty members whoare considered "managers" and/or "supervisors," and thusinstitutions may refuse to bargain with their representatives.Faculty members are Imre likely to be considered "man-agers" or "supervisors" at large, private research institutions.Faculty members at public institutions also may be restrictedin the collective-bargaining ability under their states' laborlaws. Collective bargaining is an extremely complex andunsettled area of law, and institutions should seek expertlegal and administrative assistance in dealing with such mat-ters.

To what extent are untenured faculty members atpublic institutions entitled to due process under theConstitution?The Constitution protects the pmperty interests of facultymembers at public institutions. Bef Ore such interests may hedenied or withhekl, public institutions must provkle theirfaculty members with due process protection, includingadequate notice and a hearing. l'ntenured faculty membersat public institutions have due process rights h w the durationof their contracts, but not after the contract expires unlessthe contract or employment or state law 1111 k.s them witha legitimate extx.ctation of continued employment. Sonicfaculty members may contend that they have acquiredtenure infmmally. Courts usually are unwilling to find thatfaculty members have acquired tenure through infi trmal

it,

I )

means, especially if there are written and explicit policiesgoverning how tenure is acquired. All faculty members atpublic institutions are entitled to due process protectionwhen their liberty interests are arguably infringed. Libertyinterests arise when institutions make charges or allegationsagainst faculty members that may damage their reputationsor impose a "stigma or other disability" preventing themfrom obtaining other employment. In negative reappoint-ment, promotion, or tenure decisions, liberty interests aredifficult to prove because the reasons for the denial rarelyare made public, a required condition for prevailing in sucha lawsuit.

How do courts balance institutional andindividual academic freedom rights?Institutions have the freedom to decide on academicgrounds who may teach, what may be taught, how it shallbe taught, and who may be admitted to study. As a result.courts are reluctant to become involved in academic matterssuch as pedagogy, grading, and course offerings unless theinstitutions decisions are intended to punish faculty mem-bers for their speech. Courts will become involved in nega-tive employment decisions at public institutions that aremotivated by the faculty members' exercise of their FirstAmendment or academic freedom rights. These rightsinclude the freedom to comment on matters of public con-cern, the freedom to speak and express oneself even if suchspeech is considered offensive, and the freedom to engagein certain activities such as testifying in court cases or engag-ing in political or union activities.

How are faculty members protected from illegaldiscrimination in reappointment, promotion, ortenure decisions?Although the Constitution and state laws prohibit discrimina-

m, the bulk of the employment-discrimination litigationhas involved a number of federal civil-rights laws, especiallyTitle VII of the Civil Rights Act of 1964. Federal civil-rightslaws pr1 )vidt. an easier burden of pnx if for faculty membersalleging illegal discrimination than dcws tile Constitution.These laws also pn wide better guidance to institutions foravoiding discrimination than many state laws. Given theinherent subjectivity of the promotion and tenure process,

TclIllre. Pronto/inn. and RMppollItMent

what is considered fair or meritorious is difficult to deter-mine and will vary from person to person. Furthermore,some policies or practices adversely affect women and facul-ty of color. As a result, employment-discrimination caseshave been increasing, and colleges and universities shouldjustify their reappointment, promotion, and tenure decisionswith clear data and careful documentation.

What are the legal boundaries of affirmativeaction in faculty employment?Affirmative action in the reappointment, promotion, andtenure process seeks to accomplish three objectives: elimi-nate the effects of an institution's own present or prior dis-crimination against women and people of color; remedysocietal discrimination and increase the representation ofwomen and people of color in the faculty ranks; and pro-mote racial and tender diversity on college campuses. Hutas the current sc .ietal and political debate makes clear, fac-ulty members who do not benefit from affirmative actionmay believe that their individual rights have been violatedand that they have been the victims of reverse discrimina-tion. Institutions of higher education niay believe that abalance between the goals of affirmative action and claimsof reverse discrimination is impossible to attain.

Nevertheless, inAtutions have been able to justify affir-mative action if they are attempting to remedy the effects oftheir own discrimination. In addition. Title VII permits pri-vate and public institutions to implement voluntary affirma-tive-action plans if there is a "manifest imbalance" in the jobmarket, if the plans are only temporary, and if the interestsof faculty members not benefiting from affirmative action arenot unnecessarily "trammeled." Public institutions, however,are subject to much stronger standards of justification onconstitutional grounds.

What rights do faculty members have to accessconfidential peer-review materials?Faculty members or the EEOC may be able to obtain access

reer-review materials to discover proc)f of discrimination.Furthenth we, in scnne states, peer evaluations are made gen-erally available to faculty members under employee "rightto know" or "sunshine" laws. Although faculty membersalleging discrimination have been given access to their and

others' personnel files, courts have been generallyconcerned with the impact this disclosure has on the peer-review process. As a result, courts continue to search for abalance between the importance of confidentiality for thepeer-review system and the need to prohibit discriminationin higher education.

The peer-review system likely will not suffer from disclo-sure of confidential peer-review materials. Peer evaluationsbased upon sound and fair reasoning will always withstandchallenges. Even though courts will compel disclosure insome situations, the decision of whether to voluntarilyrelease peer-review materials to the faculty member is oneof institutional policy. Some institutions provide facultymembers with, at a minimum, 'a redacted (with identifyinginformation deleted, for example) copy.of the peer-reviewmaterials, and recent data indicate that the peer-review sys-tem is not greatly affected by disclosure of peer-reviewmaterials.

To what extent are administrators and facultymembers involved in the peer-review processliable for defamation and other tort claims?Although faculty members and administrators involved inthe peer-review process can be sued for defamation andother torts, they usually are protected from liability by statelaw, or a qualified privilege'. Also, most institutions haveinsurance covering this type of matter. Peer reviewers canlose this protection if they act with malice or bad faith ordisclose the information to people who have no legitimateinterest in the matter. As kmg as they act honestly and fairlyand prc wide detailed examples for their conclusions, admin-istrators and Faculty members involved in the peer-reviewprocess generally are protected from liability.

What can we do to minimize the risk of litigation?Administrators, faculty members, and institutional attorneysshoukl function as a team in informing other administramrsand faculty members about the legal implications of theirresponsibilities. Legal audits shoukl he performed periodi-

'Qualified privileges against liability from defamation ;md other tons aregranted to peopk. making empktyment evaluatkms. pnwkled they actedwithout malice or ill %%ill. The law grants these pris lieges when the interestsat stake warrant them.

Tenwv, Promotion, aml ReappoinIment

cally. These legal audits involve surveying each office andfunction to ensure that policies and practices are in compli-ance with legal principles. Furthermore, legal audits andteamwork can serve as an early warning system that alertsadministrators, faculty members, and legal counsel of poten-tial legal problems long before they lead to litigation.Institutions should take steps to minimize the risks fromlitigation. We recommend the following:

Institutions should involve legal counsel in determiningpolicy and procedures for reappointment, promotion, andtenure decisions.The reappointment, promotion, and tenure policiesshould be explicit, unambiguous, and consistent, andthese policies should clearly articulate how tenure is to beacquired.Institutions should eliminate or minimize those practicesthat are not specifically addressed in the institutions' writ-ten policies.Institutional officers and key administrators should heinformed that their actions and words can bind the insti-tutions to a contract.All units in the institution shoukl be governed by a singlereappointment, promotion, and tenure policy, though thestandards may differ among units.The criteria for reappointment. promotkm, or tenureshould be specific enough to provide guidance to facultymembers.Faculty members should be provided with as much infor-mation as possible as they prepare for their reappoint-ment, promotion, or tenure review.Faculty members should be provided procedural safe-guards before they are released from their contracts.Instituticms should provide orientatkm and career devel-opment for new faculty members.Instituticms should devekT a process of annually evaluat-ing faculty members.The faculty member should be apprised of any perfor-mance problem with enough time to improve.!acuity members shoukl be prc wided with, at the veryleast, a redacted copy of their performance evaluationsand peer-review materials.Institutions should commit themselves to ending discrimi-

nation and to take whatever steps are necessary toachieve this end.Institutions should be conscious of the important legal,political, and social interests associated with affirmativeaction.Individuals involved in the evaluation or review processmust be made aware of the fundamentals of employment-discrimination law.Institutions should establish grievance procedures that areeasy to use.Institutions should onsider adopting binding arbitrationor another method of alternative dispute resolution.

Tenure. Promotion. and Reappointment i.v

CONTENTS

ForewordAcknowledgments xv.

Introduction: Tenure in AmericanHigher Education 1

Tenure in American Higher Education 1

History of Tenure and Promotion 6The Nature of the Faculty-Institution Relationship 9

The Use of Scenarios 11

Summary 11

The Faculty Contract of Employment 13The 1940 Statement of Principles and Other

AAUP Policy Statements 15The Contract of Employment 17

The Employment Contract and State LawPart-Time Faculty Members and Adjunct ProfessorsTenure by Default 25"Tenure Density" 28Financial Exigency and Program Eliminationor Reduction 30

Collective Bargaining 32XYZ College Scenarios 41

Summary 4)

Constitutional Rights in EmploymentDecisions: Due Process, Free Speech, andAcademic Freedom 45

Due Process Rights 46Freedom of Speech and cademic FreedomEastern State I Iniversity Si enario 67Summary 68

Employment Discrimination 71The Nature of Employment-Discriminatkm Litigation 73Consequences of Employment-DiscriminationLitigation

The I.egal Basis for Employment-Discriminatkm LawsuitsTitle VII of the Civil Rights Act of 1964 78Section 1981 and Section 1983 93Title IX of the Education Amendments of 1972 94Age DiscriminationDiscriminatkm Based on Physical Disabilities 90Religion Discriminatk)nProfessor Y and Professor X Scenarios 98Summary

Tenure, Promotion, told Mvpmnninwnt

Affirmative Action, Diversity, andIndividual Rights 101

Arguments For and Against Affirmative Action 103The Legal Status of Affirmative Action 106

Southern State University Scenario 116

The Diversity Dilemma: Balancing Institutional andIndividual Rights 117

The Legal Implications of Peer Review 119Arguments For and Against Disclosure of Peer-

Review Materials 120Peer Review and the CourtsA Short I listory 122State Law and the Peer-Review System 133Student Evaluations and Other Evaluation "Rulslised by Peer-Review (;ommittees 138

Defamation Liability and Other Claims AgainstPeer-Review Evaluators 140

The Scenario 145

Summary 146

Recommendations for Policy and PracticeSome Final Words

149157

List of Cases 159References 165Index 173

ASHE-ERIC Higher Education Reports 193Advisory Board 194

Consulting Editors 195Review Panel 197Recent Titles 201

Order k)rni 205

Li4

FOREWORD

The fear of every college president ca dean is to see thenewspaper headline: PROFESSOR AWARDED $3 MILLIONIN PERSONNEL SUIT. This fear seems to he justifiedbecause personnel matters are the single largest area of liti-gation for institutions. Institutions need to protect theirscarce resources from being redirected from the pursuit oftheir academic missicm.

It should he understood that faculty do not sue their insti-tutions on a whim. There are always reasons, real or imag-ined, that cause an individual to enter into an adversarialrelati( mship with the organizatkm he or she (mce k)inedvoluntarily with the hopes of a productive lifetime career.'Hie major causes of facuhy litigation are:

2'oor training: On the wlacle, key academic leaders.In im academic vice presidents to department chairs, havenot been instructed (m the motives underlying most per-sonnel disputes. As A consequence of this unknowing-ness, these key institutional leaders may respond inmanner which puts the institution at risk.Violation of written agreements: The first area ofconcern to the courts is that once an agreement is inack..it is faithfully executed. Most faculty disputes occurbecause the institution has failed to uphold its agreementwith the individual. This agreement could he found aspart of the faculty contract or could he pan of the policiesthat govern the institution, e.g.. faculty code or personnelprocedures.Violation of basic rights: The sec(md area of concernto the courts is that the rights of the individual he protect-ed fr(mt the oppresskm of g(wernmental agencies orimpersonal organizations. These basic rights are detailedin federal and state constitutions and in the \Jrious non-discriminatkm federal regulati(ms.Inconsistent enforcement of procedures: One con-cept or nondiscrimination is that everyone is treated thesame. Therefore, policies and procedures that areapplied incimsistently are considered hy the courts to be

tinaccupioNc.Faculty perception of being treated unfairly: l'oc,rcommunicatkm and a sense of mit being appreciated mavhe all it takes to motivate a faculty memher to sue.

Reap/Mill/Mel/I ,viii

Litigation of this type may be few in number, but it doestake up a significant percentage of the time spent by thecollege counsel.

Academic leaders must develop policies and practices thatare sensitive to the changing needs of the institution. Thechanges higher education has experienced in the knowledgebase, financial issues, expectations of students, and demandsby society have increased significantly during the past 20years and are accelerating. Balancing the needs of rapidchange while protecting the rights and expectations of facul-ty will take increasing skill.

In this report, Benjamin Baez, an instructor of highereducation at Syracuse University, and John A. Centra, profes-sor and chairman of the Higher Education program atSyracuse University. have developed a comprehensive viewof faculty legal issues concerning tenure, promotion andreappointments. They address the primary areas of litiga-tion: contracts; constitutional lawincluding due processrights; freedom of speech and academic freedom considera-tions; employment discrimination: affirmative action, includ-ing diversity and individual rights: and peer review. Baezand Centra have provided an analysis that will he extremelyuseful for institutions to begin a comprehensive legal-educa-tion program for their academic leadership.

When an institution establishes such a training program,the benefits will include an awareness of the legal implica-tions of individual acts, development of a sensitivity to theneed to consistently enfOrce the policies and procedures ofthe institution, and development of a stronger relationshipbetween the actions of individuals to the overall mission ofthe institution. The end result is the development of a cul-ture that is more nurturing and supportive of faculty rights,more consistent with the academic purpose of the institu-tion, and more protective of individuals with less power andinfluence. In short, a leadership that has a firmer foundationregarding its legal rights and responsibilities and better ableto create a culture of trust that fosters an attitude of appreci-ation rather than an attitude of mistrust protected.11y a shieldof litigation.

Jonathan D. FifeSeries Editor, Professor of Higher Education Administration,andDirector, ERIC Clearinghouse on Higher Education

Torun,. Promotion, (ma Reappointment

16XV

ACKNOWLEDGMENTS

This report is dedicated to faculty members, especially thosewho were unsuccessful in their hid to attain tenure. Eventhough many faculty members do not, and many will not:attain promotion and tenure, we all can learn from theirefforts. The faculty members and institutions that are thesubjects of the cases discussed in this report may or may nyhave won their lawsuits, but they have provided us withlessons that can help us ensure fairness during these particu-larly stressful but essential processes.

We woukl like to thank our spouses, Rochelle Fames andNancy Centra, for their support and patience during thewriting of this manuscript and the performance of our otherresponsibilities. Furthermore, w e extend our thanks to thefour anonymous reviewers for their assistance in identifyingimportant sources and providing insightful feedback andsuggestions.

TCH1I1V. WU/

INTRODUCTION: TENURE IN AMERICAN HIGHER EDUCATION

This report addresses the rights and limitations of facultymembers and institutions in reappointment, promotion, andtenure decisions. Although colleges and universities have agreat deal of discretion and autonomy from court interventionin employment matters, they also confront legal limitations.The following sections explore broad questions with regard tonegative reappointment, promotion, and tenure decisions:

What rights and responsibilities do institutions and facultymembers have under the employment contract?Are untenured faculty members entitled to constitutionaldue process?How are the academic freedoms of the institution andfaculty members balanced?What protection do faculty members have against illegaldiscrimination?What rights do faculty members have to inspect peer-review information?What are the legal boundaries of affirmative action?What can we learn from the exploration of these issuesthat would help administrators and faculty members makelegal and fair decisions?

Tenure in American Higher EducationAlthough this report addresses the legal implications of reap-pointment, promotion, and tenure decisions, tenure is thecrux of the discussion and the subject of many lawsuitsinvolving faculty members. Tenure in American higher edu-cation has a long and varied history. As defined by theAmerican Association of University Professors, or AAUP,1940 Statement ot Principles on Academic Freedom andTenure, which has been adopted by many, if not most, insti-tutions and is relied upon by many state and federal courts,tenure protects a faculty member's freedom to teach,research, and engage in extramural activities, and it providessufficient economic security to make the academic profes-sion attractive to able men and women (AAUP 1990).Although tenure does not guarantee lifetime employment,dismissal becomes very diffkult once a faculty member hasattained tenure.

Tenure has been criticized widely within higher educationas well as outside ( Wall Street journal, Oct. 10, 1994). As aresult, many in higher education argued that the teicore sys-

This reportaddresses therights andlimitations offacultymembers andinstitutions inreappointment,promotion, andtenuredecisions.

Tenure, Promotion, and ReaMmintment

tem should be reformed (Tradltenherg. JanuaryTebrualy1996). The American Association for Iligher Educationbegan a two-year project examining tenure (chronicle 4Higher Education, March 31, 1995). Of course, many profes-sors and presidents defend the intent, if not the allegedabuses, of the American tenure system (Cotter, January/February 1996).

Tenure does not come without costs to an institution. Inaddition to the risks that the tenured professor may becomean ineffective teacher, stop publishing. and be a poor citi-z, i. there are other costs. Financially, the employing institu-tion commits to a potential lifetime appointment that maycost it approximately S2 million by the time the tenuredprofessor retires (Brown and Kurland 1993). In response tothese criticisms, opponents have called for an elimination ormodification of tenure. Some institutions have adopted alter-natives to tenure by employing faculty members on termcontracts; others have modified their tenure system by enact-ing nontenure track appointments, extended probatkmaryperiods. suspension of the "up-or-out- rule, inlposition oftenure quotas, and periodic evaluation of tenured Facultynlemhers (Chait and Ford 1982).

There are benefits for the institution and the faculty mem-ber. The Faculty member is rewarded for his or her workand gains job security. For the institution, the Americantenure system, with its -up-or-out- policy, does not allowmarginal professors. though popular, to linger on. Tenurealso is a trade-ofi for the IC)wer salaries paid to faculty mem-hers compared with other professionals: certainly, the lackof job security generally would require higher salaries(Brown and Kurland 1993: Franke 1995). Given the knversalaries, academic institutions are able to recruit quality pro-fessors with the pnmtise of tenure.

But m()st imp(mantly, tenure pn)tects and enhancesacademic freedom (Commisskm on Academic Tenure inI ligher Education 1973; Olswang an(1 Lee 1981). Professorscan be assured of performing their responsibilities withoutinterference or fear of losing their jobs. Job security pro-motes academic freed(an hy enc(mraging inniuvatk M1 dcommitment to long-term pmjects. Furtherniore, becausesenior faculty members (10 not feel pn)fessionally threatenedhy bringing in men and women of ability, they maintain thequality of the institution's faculty (Brown and Kurland 1993).

Tenure policies and proceduresTenure is the central feature of academic staffing policies inmost colleges and universities; approximately 85 percent ofall colleges and universities have tenure systems (Mortimer,Bagshaw, and Masland 1985). Some institutions, howevermost of them junior and community colleges do not,These institutions instead operate under some form of acontract system.

Most institutions of higher education have rules and regu-lations regarding the review of probationaty faculty. Facultymembers arc reviewed to determine whether they meet thescholarly and instructional standards justifying tenureawards. Such evaluation traditionally has been vested in thefaculty. This practice is consk,'ent with AAUP principles, andthe courts generally have viewed faculty as the most appro-priate evaluators of academic merit (Olswang and Lee I 984).

The 1910 Statement of Principles, although almost univer-sally endorsed and adoTted, does not prescribe institutionalpractice; it merely offers guidance. As a result, promotionand tenure policies and practices differ greatly from institu-tion to institution and sometimes within institutional unitsand departments. Every aspect of tenure may differ: thedefinition; the criteria for awards; the length of the proba-tionary period; categories of eligible faculty members; therelatkmship between tenure and rank; the procedures finrecommending; the procedures tOr appealing adverse deci-sions; the role of faculty, administration, students, and pw-erning boards in these decisions; and the methods ofevaluating teaching, scholarship. and service the nu istcomnum criteria hm. promotion and tenure.

A study by the Commission on Academic Tenure inI ligher Educatkm highlighted the variability in promotionand tenure policies and practices (1973). This variability isstill true today. While most colleges and universities havefinmal tenure policies and procedures. 5( Mlle do not. Mostinstitutions pnwide explicit statements concerning the quali-fications and criteria for reappiintment, pnimotion, an(1tenure, although s(mte do not. Increasingly, ellOrts are Madeto assist the young laculty member in devek)ping ;0, teacherand scholar, hut in some colleges and universities the youngfaculty member still is given virtually no assistance or infor-mation about his or her strengths or shortcomings until thetenure decisk m is made. Institutkms may evaluate their fac-

Pr()Inothm, ReapInOunionl

ulty member annually, every three years, or only once(when the tenure decision is made).

Some colleges and universities limit the proportion oftenured faculty in a given department, but most do not havespecific limitations. Often, the tenure decisions start withand generally f011ow the recommendations of departmentalcommittees, hut at some institutions the departmental chair-person or dean makes the effective recommendation, withor without formal faculty consultation. At many institutionsthe board of trustees makes the final decisions, although atsome colleges presidents or other principal academic offi-cers have the ultimate authority to grant tenure. Many insti-tutions also have grievance procedures that allow facultymembers to appeal unfavorable tenure decisions, although afew colleges and universities do not.

Despite the variability, some commonahties exist. Usually,fitculty members reach the tenure decision after some periodof probationary service that comnumly ranges from three toseven years, averaging six years at universities and five andone-half years at four-year colleges (Chait and Ford 1982).The review process typically lasts for most of the academicyear and involves input from peer-review committees,department heads, deans, and other administrators (Leap1993). The faculty member is burdened with pawing his orher worthiness; should the decision be negative, the facultymember is given a one-year terminal contract. In institutionsthat permit promotion before the tenure decision is made,the faculty member denied promotion likely will not receivetenure.

Peer-review committees, normally consisting of depart-mental colleagues, typically mke the initial recommenda-tion on reappointment, promotion, or tenure. Once thesecommittees have made their recommendations, the dossier isforwarded to the department head and then the collegedean (in many cases, the department head sees the dossierfirst). The recommendations of the committees, departmenthead, or dean usually are not binding but often arefollowed. The dossier then is forwarded to the chiefacademic officer ;trid then the college president. Theseadministrators, fc)r all practical purposes, hold the finalauthority to grant or deny tenure because the governingboards (which often have the legal authority) usually rubberstamp these decisions (see Leap 1993; Whkker, Kronenfekl,

4

and Strickland 1993). There have been instances, however,in which a governing board has denied tenure despite therecommendations of these administrators. For example, thehoard of trustees for the University of Massachusetts Systemrecently denied tenure to three professors whose promo-tions had been approved by campus and system officials. Aboard subcommittee was concerned about the proportion oftenured professors in the system (Chronicle of HigherEducation, Sept. 8, 1995).

The primary criteria for promotion and tenure decisionsare teaching effectiveness, research and publications, andservice to the public, profession, and the institutkm. Buthow these criteria are measured and weighed varies frominstitution to institution (Diamond 1994; Kogan, Moses, andEl-Khawas 1994; Leap 1993). Although institutions vary inthe methods they use to evaluate faculty, there has been asignificant increase in the use of student evaluations, andmore recently teaching portfolios, for summative evaluationof faculty members (Centra 1993). The institutions also mayconsider such institutional needs as financial constraints,departmental growth or decline, and curricular or pr()gramchanges (Diamond 1994; Leap 1993). Faculty members usu-ally are required to submit a dossier that illustrates and sum-marizes their accomplishments. as well as other documents(such as letters (if reference). Institutions also seek letters ofevaluations from scholars at other institutions (Leap 1993).

Given the financial constraints that most institutionsobserve, many faculty members will not achieve tenure;many will be hired on nontenure tracks and others will notbe granted tenure because of the already high percentage oftenured faculty at many colleges and universities (Brooksand German 1983; Chronicle of Higher Education, Sept. 8,1995). Because of the benefits of tenure, the subjectivenature of the procedures and criteria, and the drastic conse-quences of a negative pronk)ticm and tenure decision, facul-ty members sometimes will choose to seek a judicial remedyin a state or federal court. We are likely to see more facultymembers seeking remedy in the courts.

Tenure, furthermore. dc)es not guarantee lifetime empl()y-ment. This also is true in public institutions in which tenureattainment gives faculty members a "property interest- pro-tected by the due process clause of the 14th Amendment.Tenure only protects a faculty member from being dismissed

Tenure, Promotion. an(1 Reappointment

without cause, although an institution is required to providefaculty members with adequate notice and a hearing beforedismissal. Many courts have upheld dismissal of tenuredfaculty members for, among other reasons, incompetence( Riggin vs. Board cy'Thtstees of Ball State University 1986),sexual or "unprofessional" misconduct (Kw! vs. Ball StaterniveKsit)' 1984), neglect of duties (King vs. University ofMinnesota 1985), financial exigency (Krotlayf vs. GoucherCollege 1978), and program discontinuance (Jimenez t's.Almodovar 1981).

Although many institutions do not have systematicreviews of tenured faculty, some scholars have called forperiodic evaluation of tenured faculty members (Olswangand Fantel 1980). Certain professional trends suggest thattenured faculty members may be required to submit to morestrenuous review procedures: the demands fbr quality,increased interest in periodic review of tenured faculty, elim-ination of mandatory retirement, and the obligation to endsexual harassment (Moll 1992). Furthermore, given the back-lash against tenure and increased financial difficulties atmany colleges and universities, more institutions may beginto question the perceived tradition of maintaining tenuredprofessors who do not perform adequately or engage inunprofessk)nal conduct.

History of Tenure and PromotionTenure as.we know a today, with a set of due process rightsthat go with its acquisition, did not exist prior to the 19-10s(Metzger 1993a). In the 19th century. many institutionsappointed their faculty for one year, vacated their positionsat the end of the term, and reappointed only those whopassed the annual review (Metzger 1973). This practice wasmost common in state-supported institutions and was justi-fied by governing I), ,rds on the grounds that yearly appm-priations mack' it difficult to commit to long-term appoint-ments. Furthermore, if indefinite tenure existed at all, thelaw treated it as temporary and extinguishable (Metzger1973).

Since professors had indicated concern about their jobsecurity and many of them sought freedom lOr their expres-sions and beliefs, the AAUP, born in 1915, issued a declara-tion of general principles on tenure and academic freedom(Metzger 1973). The AAUP sought to accomplish two goals:

O

the right to establish the faculty as the body hest able tojudge the qualifications of other faculty, and the use of cer-tain procedures (such as written charges and a fitculty trial)to make it more difficult for the institution to dismiss facultymembers capriciously.

Before the 1940s, some institutions gave tenure (that is,continued appointment without explicit renewal) to facultymembers at the rank of full or associate professor, whileothers did not give tenure at all. In institutions with tenure,the lower floor was turned into a "proving ground fromwhich qualified persons could be lifted out of insecurity onthe elevator of promotion" (Metzger 1993a). Most of theinstitutions, however, did not set a limit on the number oftimes short-term appointments could be renewed, and sosome teachers could compile many years of service withoutever gaining tenure. The AAUP addressed some of theseconcerns in 1940.

The 1940 Statement of Principles on Academic Freedomand Tenure was issued jointly by the AAUP and theAssociation of American Colleges. Over the years. the 19.t0Statement of Principles has been incorporated expressly orby reference into many faculty handbooks, endorsed bymore than 100 national learned and professional associa-tions, and relied upon by a number of courts; it is the gener-al norm of academic practice in American higher education(Van Alstyne 1993b).

The 1940 Statement of Principles emphasized job security.By its use of the word "probationary" to describe the pre-tenure service, it made it clear that this pre-tenure periodcould not he used as a form of "cheap lal)or." The statementalso disengaged tenure from rank and tied it to years ofservice, which was reckoned as all the years spent in theprofession. De facto tenure (or tenure accrued by nonformalmeans rather than institutional say-so) thereby became pos-sible (Metzger 1973). The 1940 Statement of Principles alsorequired that the dismissal of tenured professors could onlybe accomplished by showing financial exigency or cause.

The 1940 Statement of Principles protected tenured facul-ty members. The AAUP, in response to the dismissal ofuntenured professors during the McCarthy era, called for theproceclural protection of these faculty members (lin)wn andKurland 1993). The AMU' safeguards include hearings xvhenviolations of academic freedom are alleged and sufficient

Tenure, Promotion, and Reammitittm,n1 7

notice of nonreappointment so that a faculty member hastime to relocate or to seek reconsideration of the negativedecision.

Legal history of tenure and promotionThe courts in the early 1900s tended to view colleges anduniversities as just another kind of corporation, and the earlyacademic-employment cases indicated extensive judicialdeference to academic decisionmakers as long as there wasa showing that the termination of appointments were in thebest interests of an institution (Olswang and Lee 1984). TheSupreme Court. however, moved toward recognizingacademic freedom (which was protected by tenure) as ale imate constitutional value in Sweezy zs. New Hampshire(19$-1. This decision overturned a contempt conviction of aprofessor who refused to disclose what he discussed in aclass lecture (Van Alstyne 1993b). In livishian vs. Board qt.Regents (1967). the Supreme Court eliminated all but themost general loyalty oaths and recognized that academicfreedom is a -special concern- of the First Amendment. Inaddition to freedom to engage in political speech. courtsalso have recognized the freedom of faculty members toengage in teaching and other classroom activities, as well asthe freedom to conduct research (Olswang and Lee 1984).

In later cases, the Supreme Court established tenure atpublic institutions, once acquired, as a "property interest.-protected by the due process clause of the 1-ith Amendment(see Section Three). Tenure rights may be governed by theemployment contract or state law, but once acquired publicinstitutions must establish extremely good reasons (and pro-vide proper procedural safeguards) before dismissing atenured faculty member.

Untenured faculty members, on the other hand. are notprotected by the Constitution after their contracts haveexpired*. Their rights fm nonrenewal are primarily estab-lished b) the employment contract, which may protect themby providing grievance procedures and other safeguards.Untenured faculty members also may have rights under statelaw. Tenure plans at public institutions, for example, may be

_

Tnienured fat ult members arc protected 'slide tlwir (11111r,ION arc indiet!. Ina minrencwal is not .1 tiepin ation ot property intviest t/Pwrilry.Regolh vs Roth 19-2).

8

2

governed by state law, and any decision contrary to theseplans may result in litigation and, in rare cases, the judiciallymandated tenure of these faculty members.

The AAUP definition of academic freedom and tenureemphasizes the protection of individual professors againstthe institution, whereas the constitutional definition seems toemphasize the protection of the individual and the entireuniversity community against state intervention (Rabban1993). The freedom to determine who may teach, what maybe taught, and how it shall be taught apparently covers theappointment, promotion, tenure, and the elimination offaculty, as well as curriculum issues, pedagogy, and student

.admissi(Ms (Rabban 1993).The AAUP's definition of academic freedom is important

because courts have used it to establish the employmentrights of professors whose appointments have been tenni-nated. When the institution has incorporated this definitkminto faculty handbooks or other documents, courts havedetermined that it is part of the employment contractstseeGreene vs. Howard (.1niversitv 1969; Olswang and Lee 1984).Even when institutions have not explicitly incorporated theAAUP definition into their policy documents, courts mayhold that institutions are responsible for complying withthese principles, interpreting them as a kind of -industrypractice" (Olswang and Lee 1984).

The Nature of the Faculty-Institution RelationshipTo grasp the kgal implications of reappointment. prcnnotion.and tenure decisions, it is important to understand howcourts view the faculty-institution relationship. This relation-ship is primarily defined by contract law, but certain issuesare resolved by labor law, empkwment-discrimination law,and, in public institutions, constitutional law and publicemployment statutes and regulations (Kap lin and Lee 1995).Since the Constitution provides safeguards against stateaction, private institutions rarely are subject to the constitu-tional requirements imposed on public institutions (via the14th Amendment, for example). Therefore, contract lawprovides the primary basis for defining the rights of pri aleinstitutions and their faculty.

'Wilt lc m0+1 qatc,-. tvt-at facttlt 11,tm.111tHlks :tsciwitratis..t cvv.

To grasp thelegal implica-tions of reap-pointment,promotion, andtenure deci-sions, it isimportant tounderstandhow courtsview the fac-ulty-institutionrelationship.

'lemur. Promotion, and Reappointment 9

ork

The legal implications of promotionand tenure decisionsGiven the importance of promotion and tenure deciskms tothe institution and individual faculty members and the legalhistory established, resorting to the courts for a remedy isnot unusual. Faculty-empl()yment decisions account for thegreatest proportion of litigation against colleges and univer-sities (Lee 1985). This is not surprising. Financial constraintsin higher education have decreased the number of facultypositions. The high number of tenured faculty and the finan-cial costs associated with tenure have fiwced many institu-tions to toughen the standards for granting promotion andtenure, leading to more negative decisions in a tighter jobmarket. And employment-discrimination laws provide morechannels for challenging negative decisions (Lee 1985).

Though courts (Men defer to academic expertise inempl()yment matters, an institution may not violate a facultymember's civil, constitutkmal (at public institutions), or con-tractual rights. Courts will look to the facts of a case todetermine whether the stated reasons for denying promotionor tenure are impermissible or whether there was a substan-tial departure from accepted "academic norms- (Rabban1993). The role of the courts, however, is not to review andcorrect mistakes but to ensure that the decisions are consis-tent with legal requirements. As a result of this limited view,most legal claims by individual faculty members have beenrejected (Rabban 1993).

Despite all the concern by administrators and facultymembers about the competence of judges to evaluate sub-jective employment decisions, courts rarely question sub-stantive decisions (Lee 1985). And when they have lookedinto these decisions, they have focused on factors notunique to academia namely. the timing of the decisionsand quantifiable data (Rabban 1993).

Nevertheless, courts sometimes have reviewed the sub-stance of these decisk ms to determine whether faculty mem-bers' rights were violated. This is especially true indiscriminatkm and First Amendment cases. In a number ofcases in which the reasons for a negative employment deci-sic )11 have been considered weak or poc crly substantiated orwhere the unanins nas decision of the fitculty committeeswits overturned by upper-level administrators, the courts

have found that the stated academic reasons were a pretextfor an illegal decision (Rabban 1993).

The Use of ScenariosBecause we believe that complex legal issues are bestunderstood when specific problems are at issue, this reportuses scenarios to guide the readers through the issues dis-cussed in each section. For this reason, we also provide amore extensive discussion of the facts of cases then onemight see in reports dealing with legal issues. These scenar-ios are composites of actual cases and provide the readerswith realistic examples of how these legal issues might man-ifest in practice. Each section begins with a scenario or twoand some questions about scenario(s). At the end of thesection and after we have discussed the relevant legal doc-trines, we return to the scenario and provide possibleanswers to these questions. Readers may choose to return tothe scenario) to refresh their memories before reading ouranswers.

SununaryInstitutk ins have a great deal of autom)my and discretion inmaking reappointment, pRimotion, or tenure decisams.Courts are reluctant to substitute their judgments for those ofacademic professionals. On the other hand, courts arerequired to intervene in these matters when the individualrights of faculty members are threatened. Although cases byfaculty members against colleges and universities involvereappo >intment. promotion, and other issues. the mostimportant cases deal with tenure denial. Temire has manybenefits for institutions and faculty members, hut it also) hasfinancial consequences for the institution. The financial.professional, and emo)tional consequences of a negativetenure decision for faculty members likely will result inmany nage such lawsuits.

7iwure, Pmmutiun. and Remsoamein II

THE FACULTY CONTRACT OF EMPLOYMENT

Consider these scenarios:The faculty handbook at XYZ College, a private

institution, states that "full-time faculty members areentitled to tenure at the end of their seventh year ofservice, provided they have proven merit in teaching,scholarship, and service." Faculty members must applyfor tenure in their sixth year, and the handbookdescribes the process. Professor A, a male facultymember in the English department, served as anadjunct professor for two academic years teachingthree classes each semester before being appointedassistant professor Aug. 1, 1990, on annual contracts.

On Aug. 1, 1994, Professor A was informed that asof July 30, 1995, his services no longer would berequired. The college was not "dissatisfied" withProfessor A's performance, but it was experiencingfinancial difficulties. As a result, it was eliminatingpositions in a number of departments. Professor Aclaimed that pursuant to the handbook, the completionof his last year automatically gives him tenure. He alsocontended that since he has served the college for sixfull years, at the very least he should be permitted toapply for tenure. The college argued that no facultymember is "entitled" to tenure, and only full-time facul-ty members are eligible to apply for tenure at the startof their sixth year. Since Professor A was notified ofdismissal before his sixth year, he is not eligible fortenure. The tenure policies do not address the issue ofadjunct professors. Professor A claimed that his depart-ment chairperson indicated to him that his two yearsas adjunct would be considered "full time."

In addition to Professor A's position, XYZ Collegeeliminated a number of other untenured faculty posi-tions for financial reasons. Many faculty members dis-agreed that the college was motivated by legitimatefinancial reasons. Many of them also believed they hadlittle say about the elimination of faculty positions. Asa result, a number of tenured and untenured facultymembers met to discuss whether it would be appropri-ate to form a union to bargain.collectively with thecollege regai-ding when and hOw faculty should bedismissed and other employment matters.

Tenure. Promotion. and 1?eappoin1nwnt 13

On paper, the administration retains ultimate deci-skm-inaking authority in all matters. The faculty at XYZCollege. however, have almost unfettered autonomyabout curriculum issues, admission and graduationstandards, and grading policies. The faculty also pro-vide recommendations ahout hiring, promotion, andtenure matters, and although the administration usuallyaccepts these recommendations. it has overturned theirrecommendations in some cases. The administrationalso seeks faculty input into many other decisions, andfaculty members often are represented in internal com-mittees that make recommendations to the administra-tion on many matters.Does Professor A have tenure? At the very least, should

he be permitted to apply for tenure? Are the faculty mem-bers able to bargain collectively with the college? Thesequestions will be addressed at the end of this section.

Traditionally, empk)yment relationships have been con-sidered -at will." meaning that either party may terminatethe relationship at any time for any legal reason. In highereducation, however, the concept of -employment at will- isnot appropriate to describe the faculty-institution relation-ship. Administrators and clerical and support staff membersmay be "at will- employees, hut faculty members rarely are.For one, tenure has made the faculty-institution relationshipdistinct from that of other profession,. Tenure protects facul-ty members from dismissal without cause. t ;ntenured facultymembers also are not "at will- employees. They usually haveterm contracts typically for one year although thesecontracts may be longer at some institutions. These facultymembers are protected from dismissal for any reason for theduration of their contract periods.

But untenured faculty members have no rights after theexpiration of their c(nitracts. and both parties may end theirempl()ymen! relationship. for any reason, without subjectingthemselves to any legal obligations. Increasingly, untenuredfaculty members are attempting to seek rights beyond theterms ()I their contracts, usually asserting that verbal (that is,(nal or written) assurances or promises. academic custom otpractice, and.'(n institutional policy statements ensured themcontinual employnwnt (I lustoles 1983). It is this issue (the

1-1

JU

attempt to extend their rights beyond the terms of the con-tract) that is the focus of this section.

The contract of employment is the primary basis fordetermining the rights and obligations of faculty membersand their institutions regarding reappointment, promotion,or tenure decisions. The employment contract can includethe notice of appointment, institutional policy statements,and other documents, including the 1940 Statement ofPrinciples. Since courts may look to all these materials toresolve contractual disputes, administrators should exercisecare in drafting and implementing these documents. Failureto carefully draft these materials may lead to expensive law-suits, legal-remedies for the faculty member, and in somerare cases the possibility of judicially imposed reappoint-ment, promotion, or tenure of a faculty member. One of themost complex and unsettled legal areas in contract law iscollective bargaining; administrators and faculty membersseeking to understand their rights and obligations under acollective-bargaining agreement are advised to seek speciallegal and administrative assistance.

1940 Statement of Principles andOther AAUP Policy StatementsThe 1940 Statement of Principles is extremely important inthe area of faculty employment. The statement has beenincorporated expressly or by reference into many facultyhandbooks (Van Alstyne 19931)). In many cases, where thecontract of employment was unclear or ambiguous, courtshave looked to the 1940 Statement of Principles as evidenceof academic cust(,m.

The 1940 Statement of Principles states that:

After the expiration qf a probationaty period, teachers orint.estigators should have permanent or continuoustenure, and their service should be terminated only fin.adequate cause, except in the case qf retirement fir age.or under extraordinaiy circumstances because offinan-cial exigencies (AAUP 1990).

The 1910 Statement of Principles is directly responsible forthe "up or out" rule by providing that "acceptable academicpractice" requires that the po)bationaly period should not belonger than seven years. including prior service at other

Tenure, Pnnnotion. and Reappointment /5

institutions. This policy applies to all full-time faculty mem-bers regardless of rank and credentials, and an institution'sattempt to increase the length of the probationary periodwould run contrary to this policy. The probation periodensures that institutions do not take advantage of facultymembers by keeping them in vulnerable positions indefi-nitely. Some institutions, for example, increase the proba-tionary period by placing new faculty members who havenot completed the terminal degree in a "pre-probationary"status, not starting the "tenure clock" until the degree isattained. In a strict sense, even this practice runs counter tothe 19,40 Statement of Principles.

Not all extensions, however, hurt faculty members. Forexample, many institutions give faculty members the optionof claiming prior service at another institution toward theprobatimaly period: this may extend the probationary peri-od, allowing these faculty members more time to attaintenure. Also, some institutions have tenure policies that allowany parent of a newborn extra time to earn tenure, althoughwomen are particularly vulnerable to the "up-or-out" rule.The current practice of proving oneself within six years hasforced many women to choose between their careers andparenthood or to delay having children until their late thirtiesor early forties (Chronicle qf INher Education, March 10.1995). In some cases, women have lost their jobs becausethey have chosen to have children during their probationaryperiod, minimizing their pR)ductivity.

Although available at many institutions. extensions grantedfor rearing children are controversial to some critics.Institutions that permit these extensions may find it moredifficult to refuse them to those who need to complete theirdoctoral degrees or who were saddled with prior service else-where (although many institutions do count some prior ser-vice and (10 not force the faculty member to completeanother seven years). Some argue that extencions of theseven-year probationary period, even when a faculty memberhas served at another institutk)n, may undermine the tenuresystem and weaken its protection of academic freedom (seeBrown and Kurland 1993). The AAIT realized that legitimateneeds exist justifying an extension of the probationaiy periodand modified its policy in 1978 by acknowledging that whenfaculty members move to another institution, it may be in thebest interests of both parties to determine at the time of initial

/6

appointment whether to delay the tenure decision beyond theseven-year period required by the 1940 Statement ofPrinciples (Brown and Kurland 1993).

Institutions that have incorporated the 1940 Statement ofPrinciples, or any other AAUP policy statement, into theiremployment contracts or faculty handbooks have beenrequired to uphold its tenets. As mentioned previously, evenif an institution has not explicitly incorporated the 1940Statement of Principles into its employment contracts, courtssometimes have held institutions responsible for complyingwith the statement, viewing it as evidence of "industry prac-tice" based on widely held norms and beliefs (Olswang andLee 1984, p. 9). This does not mean, however, that facultymembers will always prevail in court. In Hill es. TalledegaCollege (1987), three faculty members appointed on one-year contracts in August 1984 were informed by letter inMay 1985 that their services no longer would be required.Each faculty member filed a separate lawsuit, alleging (hatthe college failed to apply the AAUP's Procedural Standardsin Faculty Dismissals Proceedings. which provides elaborateprocedt!ral standards that must he followed before a facultymember can be dismissed. The court consolklated the threecases because they essentially dealt with the same claims.Without deciding whether this policy was, in fact, incorpo-rated into the faculty contract of employment, the courtdetermined that the policy statement applied only to facultymembers "who were dismissed." The court held that thesefaculty members. however, were not "dismissed"; instead,their contract terms merely expired and they were owed nofurther process than a notice of nonrenewalt.

The Contract of EmploymentThe contract of employment embodies the rights of the fac-ulty i ember and his or her institution. These rights may beconferred formally by the actual words of the contract andinformally by academic custom and usage. verbalassurances, and the unwritten practices of the institution.

The terms of the contractCourts consider the contract of employment as mntaining

'The faculty inemhers recened their salaries through the end of their mn-tracts.

Tenure, Promotion, and Reappointment 17

33

the essential policies and practices of the institution as theyrelate to tenure, promotion, or contract renewals(Hendrickson 1991). Faculty employment contracts canrange from simple letters of appointments to elaborate col-lective-bargaining agreements. The contract also may explic-itly incorporate (or explicitly exclude) other institutional andprofessional policy statements, and courts may read thesestatements into the contract as evidence of academic prac-tice (Kap lin 1985). These institutional and professional docu-ments include the faculty handbook, other promotion andtenure policy statements, and the 1940 Statement ofPrinciples. Occasionally, courts will look to the practicescustomarily engaged in by the institution to interpret thecontract.

The terms of the contract, therefore, usually include theactual language in the notice of appointment, the facultyhandbook or other institutional or professional documents,academic custom and practice, and in sonie cases, the oraland written assurances of certain key administrators. Insti-tutions should ensure that these materials, customs, andpromises are clear, unambiguous, and fairly consistent witheach other.

The words of the contractCourts first will look to the words of the contract (the letterof appointment) to determine the rights and obligations ofthe parties in resolving disputes about reappointment, pro-motion, or tenure. If the language is clear, unambiguous,and consistent, then courts will decide the case based uponthe contract. Occasionally, some terms in the contract con-flict. In Ha/pin vs. LaSalle University (1994), two facultymembers sued the university claiming that their employmentcontract stipulated employment for the remainder of theirlives, thus exempting them from the university's mandatory-retirement program. Their contract stated that the universitywas extending to each professor an "invitation to continueas a member of the faculty for the remainder of hisacademic life." But they received annual contracts. Later, theinstitution adopted a retirement program, calling for manda-tory retirement at age 70. When the faculty membersreached 70, they were notified that they had been retired.The court determined that the facts, taken as a whole, indi-cated that the professors were employed on term contracts.

1H

341

In effect, the faculty members had a series of renewableone-year contracts and the age-70 retirement provision wasincorporated into these contracts. This is a good example ofa situation that could have been avoided if more care hadbeen used in drafting the contract. Furthermore, as of Jan. 1,1994, federal law has made mandatory-retirement programsillegal (see Section Four).

Academic custom and usageWhen the language in the contract is ambiguous or there aregaps in the contract, courts will look to academic usage andcustom to determine the rights and obligations of the institu-tion and the faculty menther. This custom and usage isembodied in institutional documents and practices andexternal policy statements (such as the 1940 Statement ofPrinciples). In Greow is. Howard I ',tiro:city (1969), fiveuntenured faculty menthers had been dismissed after aninternal investigation indicated they had been involved in anumber of disruptive incidents on campus. The universityterminated their appointments as of the end of the academicyear. The faculty members chtimed they had a contractualright to adequate notice and a hearing before their appoint-ments were terminated. The court agreed with the facultymembers, holding that the practices customarily followedrequired the university to provide the faculty members withan opportunity to he heard. To determine what the universi-ty's customary practices were, the court looked to the facultyhandbook, which was not specifically referenced in the con-tracts, and on the assurances of administrators about theCOIIIITIOTI practices of the university in these types of situa-tions.

To avoid such lawsuits, institutions should explicitly statein writing the terms and conditions fm reappointment, pro-motion, or tenure. In Marull I's. Baker (1980), a facultymember at the I lniversity of Nfichigan was intOrmed in 1978(his sixth year) that the next year would be his terminalyear. lie sued, alleging that it was the university's custom togive him a tenure review in his sixth year. The court heklthat under the university's then-current pc Aicy, implementedin I 971, he had no right to a tenure review. I nder previouscustom, however, he would have been entitled to a tenurereview in his sixth year.

Since courts will look to internal and external documents

When thelanguage in thecontract isambiguous orthere are gapsin the contract,courts will lookto academicusage andcustom todetermine therights andobligations ofthe institutionand the facultymember.

Tenure, Promotion, am! Reappointment

35/9

for guidance in resolving reappointment, promotion, ortenure disputes, administrators and fiiculty members shouldexercise care when drafting these materials: if there is anyambiguous language, it should be clarified. The contract alsoshould be explicit about which institutional policies andpractices are part of the employment contract.

Verbal assurances (oral or written)In reviewing contracts of employment, courts examine theexpressed words of the contracts. Courts also have lookedto other materials as evidence of a contract, including oral orwritten assurances by key administrators. This is particularlytroublesome for institutions, since many faculty membersprobably can remember a comment or statement made tothem implying job security, promotion, or other issues(1-Iustoles 1983). Because these assurances are difficult toprove, courts are reluctant to consider verbal assurances orpromises as granting any rights not explicitly stated in acontract. In Beckwith vs. /Mode Island School cf Design(1979), a faculty member of graphic design claimed he hadbeen promised a three-year contract by his departmentchairperson after completing a one-year trial period as anadjunct professor. The court determined that the promisehad been tirade but held against the faculty member becausethe chairperson did not have the authority to bind the insti-tution to such a contract (Ifustoles 1983).

In Smi vs. Board of Trustees (f 113e University of Tennessee(1975). however, a court held that verbal assurances were apan of the emphyment contract. Soni, a mathematics pro-fessor, claimed he was denied due process (see SectionThree for a discussion of due process) when the universityfailed to renew his contract without giving him adequatenotice or a hearing. Soni had been promised by the formerand new department heads that he would be considered fora permanent position, but during a faculty meeting to dis-cuss this issue it was pointed out that university regulationsprevented the permanent appointments of persons who arenot 1I.S. citizens. Soni was not a citizen. I le was informed bythe new head in 1968 that he would he appointed to associ-ate professor but the issue of tenure would need to waituntil he became a 11.5. citizen. Soni also was included in theuniversity's pension plan. The current head also assuredSoni that he was "wanted" at the university and that his

20

3 6

"prospects" were "good." Soni purchased a home in the areaand stopped looking for employment elsewhere.

In 1972, Soni was informed that his appointment wouldbe discontinued at the end of the academic year because hisperformance had not been of the "quality" expected of thoseto be granted tenure. In ruling that Soni legitimately reliedupon the written and oral assurances, the court was per-suaded that the verbal promises and assurances gave Soni a"reasonable expectation" of future and continued employ-ment, entitling him to a due process hearing.

Soni illustrates that verbal assurances by the dean, depart-ment head, or other key administrator may create contractu-al rights and obligations; therefore, institutions shouldexplicitly indicate which official or administrator has theauthority to bind the institution to an employment contract(Hustoles 1983; see also Beckwith vs. Rhode Island School qfDesign 1979). This defense, however, is not always acceptedby courts. In Lewis vs. Loivla qf Chicago (1986),oral promises and letters given by the dean to Lewis, a pro-fessor of medicine and chair of the pathology department atthe university's medical school, assured Lewis during recruit-ment that he would be recommended for tenure within twoyears. The dean forgot to submit Lewis' candidacy. justbefore his third year, Lewis received notice that the follow-ing year would he his final. The court found that the oraland written promises of the dean were a part of the employ-ment contract and bound the institution, though the formalemployment offer did not contain such promises.

Amending the contractThe contract of emplciyment can be amended at any time aslong as the institution and the faculty member agree.Contract rights also can be waived in writing by the partiesor unintentionally by their actions (Kaplin and Lee 1995). InChung vs. Park ( 1975), a faculty member at MansfieldCollege who as not reappointed after five years agreed tohave the matter resolved by arbitration, which held againsthim. The faculty member then sued, alleging that the collegedid not follow its procedures. The court held that the facultymember and the institution had agreed to the arbitration andtherefore were hound by it (Kaplin and Lee 1995). Owingnotwithstanding, institutions and faculty members shouldensure that any amendments to their contracts are in writing.

Tottire. Promotion. ellId ReappoilltInellt

Oral assurances, however, generally will not amend theterms of an employment contract. In Raker vs. Laf4yetteCollege (1986), an assistant professor under a two-year con-tract claimed that the college breached his contract when hewas not reappointed after his final year. Baker claimed thathe was given oral assurances by the department head thathe could expect more than two years of employment. Thecourt held that oral terms cannot vary the terms of a writtencontract, and so he Nvas not entitled to a contract renewal.Had the assurances been written. Baker might have pre-vailed.

Promotion and tenure criteria and proceduresInstitutions have a great deal of discretion to decide howand when faculty members have satisfied the requirementsfor reappointment, promotion, or tenure. Courts usually willnot interfere with an institution's substantive determinationthat a faculty member did not meet appropriate standards.Nor will courts interfere with the institution's discretion toestablish what criteria will be used. For example, in Levi vs.I :Wirt:city qf Texas at San Antonio (1988). a faculty memberwas denied tenure for, among other reasons, a lenient grad-ing policy. The court held that this criterion was reasonablegiven the university's mission.

Courts are more likely to review the procedures than thesubstance of such deciskms. But institutions also have widediscretion in how they implement their procedures. In Olsonvs. lilabo State t 'niversity (1994), a faculty member had beenan electronics instructor for five one-year terms. In his fifthyear, he was recommended for tenure by his departmenttenure committee, the chairperson, and the dean. While thepresident was reviewing Olson's applicatkm, Olson wasreprimanded by the dean fin insubordination after initiatingan unauthorized evaluation of another employee in violationof university policy. The dean also informed Olson that hisapplication would be reviewed again. Subsequently, thepresident denied him tenure.Olson claimed that he had done all that was required fortenure and that he was entitled to tenure because he wasrecommended by everyone except the presi(lent. The courtheld that according to the faculty handboc)k, tenure can onlybe conferred by the board of trustees. Since the presidentrejected his application before the board considered the

22

36

matter, Olson had no legitimate claim to tenure. Olson alsohad claimed that contrary to the university's policies, thedean violated his contractual rights by revisiting his applica-tion. The court found no evidence that the clean actuallyrevisited Olson's application.

In Romer es. Hobart and William Smith Colleges (1994), acourt also refused to interfere in an institution's decision todeny tenure, even when it may have violated its own proce-dures. In this case, a former classics professor alleged thathis denial of tenure was based on an improper reviewprocess. His department recommended tenure, but the col-leges' promotion and tenure committee recommendedagainst tenure. The president agreed with the committee.Romer claimed that the promoticm and tenure committeewas influenced by information it received regarding a nega-tive relationship he had with a colleague and that the com-mittee's consideration of this information violated theprocedures contained in the faculty handbook. The courtheld that even if the institution deviated from its procedures,its right to decide who shall receive tenure was not limited.Any limitation on the institution's discretion, the court inch-cated, must be expressly and explicitly stated in the contract.

. Despite the rulings in Olson and Romer, institutionsshould follow their stated procedures. These proceduresshould be uniform for all faculty members (Centra 1993).Courts sometimes will rule in favor of faculty memberswhen institutions fail to abide by their standard procedures.In Ganguli is. Unit'elNily qf Minnesota (1994), for example,the court held that a denial of tenure was arbitrary andcapricious.

Ganguli was a faculty member of mathematics at the uni-versity. While she was preparing for her tenure review, thehead of the department, who was charged with preparing hercase for the tenure pmcess, was wmoved from her casebecause of a perception by the department faculty that hisbehavior toward Ganguli was negative and judgmental. Thedean appointed the head of anc)ther department to prepareher ctise for tenure review (usually members of the samedepartnwnt were so appointed). The university also solicitedInc)re than 40 external reviewers in Ganguli's case (the normwos six to 10), which mostly were positive. A majority of thedepartment and college faculties voted in favor of tenure andpromotion, and the pn)motiom and tenure committee voted

Tenure, Pronnotion, cout Reappointmont

0 ;c..)

3-to-1 in Ganguli's favor, with one abstention. The hea, )1"

her case recommended tenure to the dean, but his letter criti-cized her research and publication record, despite the depart-ment faculty's criticism of his analysis of Ganguli's case.

The dean recommended promotion and tenure to theprovost but noted that her case was "not the strongest.- Theprovost believed that the no-votes and the abstention indi-cated that Ganguli did not have a "compelling- case fortenure, and he rejected her application. The university'spromotion and tenure regulations did not require a "com-pelling- case, and they prohibited the consideration ofabstentions as negative votes. It was clear to the court thatthe university did not abide by its own standards of proce-dure in reviewing Ganguli's application for tenure. especiallyin choosihg someone from outside of her department toprepare her case, soliciting so many external reviewers,requiring a "compelling- case for tenureind counting anabstention as a negative vote. The court mandated a newreview. This case illustrates the importance of adhering to,written policies.

The Employment Contract and State LawAlthough tenure rights are primarily created by omtract,state law also may create rights and obligations for publicinstitutions. In some cases, the state's law supersedes illstitti-tional authority. In Faculty qf the City 1 ',tiro-sit). (!f Neu. YorkLau' Scbool at Oueens 0)11c,ge ns. Mutphy( I98()). the chan-celk)r refused to forward to the lumrd of trustees the tenureapplications of two law-school faculty members w ho failedto receive unanimous support from the tenure committeeThe court held that state law established the board (iftrustees as haying exclusive authority to grant tenure andtherefore the chancellor did not have the autlu)rity to) with-hold the applications.

Tenure rights may be created or re\ oked by state law. Ifthey are revoked, the institution may choose to ignore themunless they have Wen promised in an employment contract.Contractual rights, however, may not be revoked by statelaw unless a contract explicitly provided for su(h a diange(Kaplin and Lee 199i).

Part-Time Faculty Members and Adjunct ProfessorsThe number of part-time faculty members and adjuncts is

2.)

4

increasing in higher education for a number of reasons butm inly because the employment of these faculty members isconsiderably cheaper than that of full-time, tenure-trackfaculty members (Gappa 1984; Kap lin and Lee 1995). Thesefaculty members have specific needs (see Gappa 1984;Gappa and Leslie 1993). Institutions should pay particularattention to how these faculty members are experiencingtheir work environments. Often, they are not entitled totenure, promotion, or other benefits, so their legal standingmay be tenuous.

Although we will not directly discuss particular legalissues involving part-time faculty members and adjunct pro-fessors. a few words about them are important. The primatybasis for the rights of part-thne faculty members and adjunctprofessors is the employment contract, although state lawmay govern in this area as well (Kap lin and Lee 1995). Anyrights extended to part-time faculty members should bespecified in the contract. The 1940 Statement of Principlesapplies to full-time faculty members, not to adjuncts andpart-time faculty. But institutions may choose to grant part-time faculty members the same rights. Thc advantages anddisadvantages of extending further rights to these facultymembers is beyond the scope of this report. If these facultymembers are to be treated differently, then administratorsshould clearly understand the legal distinctions betweenboth sets of faculty members and they should consult withthe institution's attorney to ensure that the institutkm's poli-des express any desired difference between the two sets offaculty.

Tenure by Defaultourts recognize four methods of acquiring tenure (McKee

1980). Automatic tenure occurs when a faculty memberattains tenure by being reemployed after a specified period.An example of this might be a policy that states that facultymembers shall have tenure after three years of acceptableservice. Tenure by grant is discretionary and requires someofficial institutional act or recognition that the faculty m2m-her has tenure (approval by the board of trustees, f:n- exam-ple). De facto tenure is conferred by some reference toinstitutional rules or practices, or the understanding of theparties. This method of acquiring tenure may occur when afaculty member is given extensive assurances that he or she

Tenure, Promotion, and 1?eappointment 25

had tenure, despite the existence of policies requiring someofficial act. And tenure b.). defttult occurs when a facultymember fulfills all of the eligibility requirements and isemployed beyond the probationary period (McKee 1980).Automatic tenure and tenure by grant are explicitly estab-lished by the institution, while de facto tenure and tenure bydefault are judicially determined (McKee 1980). The discus-sion in the previous sections primarily related to the rightsand obligations regarding automatic tenure and tenure bygrant. De facto tenure is based upon the constitutional prin-ciples established by the Supreme Court in Perry vs.Sindermann (1972) and will be discussed further in the nextsection.

Tenure by default is based upon principles of contractlaw. If an institution is silent as to the methml of acquiringtenure, its faculty members may attain tenure by default.And if the custom or pradice at an institution indicates oth-erwise, faculty members may attain tenure by default despitespecific language stating that tenure must he officially grant-ed by the president or the governing board.

Since tenure by default is based upon the employmentcontract, the contract should he drafted carefully, and theinstitution that does not wish to confer tenure in such amanner will need to carefully adhere to its written standardsand pr()cedures. Since the employment contract may incor-porate other institutional documents and policy statements,these materials also should be carefully reviewed. McKeepointed out that this is where institutions get into legal trou-ble, for although the employment contra,:ts may be draftedwith care, institutional tenure policies may not be. Thesepolicies usually are written collegially and reflect negotiationand compromise; as a result, they may not he legally tight,thereby leaving room for judicial interpretation.

Institutional practices also are important. Courts will useacademic custom and usage to help interpret a contract thatis silent or ambiguous about how tenure is acquired. Tenureby default is premised on the notion that a faculty memberwho is employed beyond the probationary period receivedtenure because he or she wasn't discontinued earlier. If theempl()yment contract is silent or ambiguous about whatconstitutes a probationary period, courts may interpret theprobationary period to be that established by the 1940Statement of' Principles, or seven years.

26

In Bruno vs. Detroit Institute of Thchnology (1974), thecourt held that reappointing a faculty member beyond theprobationary period may confer tenure, even if the institu-tion's policies specifically indicate that tenure can only beconferred by some affirmative act. Bruno had heen reap-pointed from 1959 through 1966, when he wa:, discontin-ued. The institution's tenure policy indicated that a facultymember who, in the opinion of the president and deans, has"acceptably performed" his or her duties for a period ofthree consecutive years, "has been assigned the rank ofAssociate or Full Professor, and has been tendered his fourthor succeeding annual contract and has accepted same, shallbe considered to hold tenure" (p. 747). The institutionclaimed that the term "shall he considered to hold tenure"required an affirmative grant of tenure, and that administra-tors had not determined that Bruno had "acceptably per-formed" his duties. The court rejected both arguments,holding that the reappointment of Bruno beyond the proba-tionary period provided the necessary "affirmative act" andthe fact that he was continually reappointed indicated thatthe institution believed him to he performing acceptably.

The Supreme Court also indicated in Peny vs. Sinder-mann (1972) that institutional practice may provide a basisfor conferring tenure. Institutions are vulnerable to judicialawz,:ds of tenure when their contracts are silent as to howtenure is to be attained or where the actions of the adminis-trators indicate that tenure was conferred to a particularfaculty member. For example, in Soni vs. Board (,f Thisteesof the (Tniversity qf Tennessee (1975), discussed previously,the court held that promises made by the department headand letters sent to the faculty member gave him a reason-able expectation that he would be tenured, even though hehad not been formally granted tenure as required by institu-tional policy.

If the institution does not wish to confer tenure in thismanner, its employment contracts and other policy state-ments should clearly indicate that employment beyond theprc)bationary period does not automatically confer tenure.The institution that seeks to modify its policies should becareful, however, to recognize that faculty members hiredunder earlier rules may have to be reviewed under policiesin effect when they were hired. In Honore vs. Douglas

(1987), a faculty member at the Thurgood Marshall School of

Tenure, Promotion. and Reappc)intment 27

4

Law of Texas Southern University served for four yearsbefore being granted three consecutive one-year leaves ofabsence to serve in the Peace Corps. When he returned, theuniversity refused to grant him tenure and released himthree years later. When Honore first was hired, the universityautomatically conferred tenure after seven years of service.This policy was changed while he was away; tenure had tobe officially conferred by the board of regents. WhenHonore was informed by the dean that he would not berehired at the end of the year, he claimed he had automatictenure under the old rules, and he sought confirmation ofthis from the Rank and Tenure Committee (which unani-mously recommended tenure). He was denied tenure by theuniversity and he sued, alleging a violation of clue processrights. The trial court dismissed Honore's claims withoutallowing him to prove his case to a jury. The appeals courtdetermined that sin,..e Honore was hired under anautomatic-tenure policy, taught for four years, was on autho-rized leave for three years, and returned to work during hiseighth year, a jury could determine that he had a legitimateclaim to tenure.

Courts willingness to confer tenure by default is relativelyrare. Most courts still defer to institutional decisions. In Hill

Talleclega Colkge (1987), discussed previously, one of thefaculty members alleged that he was entitled to tenurebecause he had been employed for 10 years at the college,and according to the 1940 Statement of Principles he shouldhave tenure. The court noted that the 1940 Statement ofPrinciples does not require the granting of tenure after sevenyears, but only states that tenure should be granted. Also.the court determined that the faculty handbook clearly indi-cated that tenure is granted by the board of trustees and thatthe acquisiuon of tenure is not automatic after seven years.he existence of conflicting policy statements in this andother cases led to lawsuits that could have been avoidedhad institutions ensured their policies were consistent.

"Tenure Density"The financial cost of tenure and other policy considerationshave caused some institutions to place quotas on the num-ber of faculty who may be tenured in a given department orcollege (see Mortimer, Bagshaw, and Masland 1985). Whenthe number of tenured faculty reaches the maximum

28

4,1

allowed percentage, then "tenure density" has occurred.Courts generally will defer to institutions to determine whatcriteria is to be used in tenure decisions, and this includestenure density.

In Coe vs. Board of Regents qf the University qf Wisconsin(1987), a female faculty member in the sociology departmentat the University of Wisconsin-Stevens Point wasrecommended for tenure by the department tenure commit-tee, even though the department was "over-tenured."Institutional policy capped the number of tenured professorsat 80 percent of the total faculty in a given department. As aresult, the chancellor denied her tenure. Coe contended thatbecause tenure density is not an enumerated criterion underWisconsin law, the chancellor exceeded his authority inconsidering it. Wisconsin law provided that tenure shall bemade in "accordance with the mission and needs of theparticular institution and its component parts.- The facultysenate had approved the tenure policy, establishing tenuredensity as a criterion in determining whether a faculty mem-ber can be tenured. The court upheld the university's deci-sion not to grant Coe tenure because state law authorizedthe institution to make tenure decisions in light of its needs,and the faculty determined that capping the number oftenured faculty served those needs.

Another court upheld a tenure-density policy in SolaLafayette Colkge (198(). In this case, the college had a poli-cy capping the number of tenured faculty in a given depart-ment at two-thirds of the total faculty, unless there was an"exceptional guideline-breaking candidate. Sola, an assis-tant professor of psychology, was denied tenure by thetenure committee (the vote was tied, resulting in a denialunder the college's rules). The department chairman hadrecommended tenure to the committee, but he noted that astronger, male faculty member was coming up for tenureand Sola's application shoukl not jeopardize this professor'scandidacy. Sola's appeal to the president was denied andshe sued the college alleging, among other issues, that thetenure quota violated the academic freedom of the facultymembers to decide tenure issues. The court held that thecolkge may use a tenure quota as a critericm f()r determin-ing who should be tenured, and that academic freedomwould be more threatened by the court's interference inthese internal matters.

Courtsgenerally willdefer toinstitutions todetermine whatcriteria is to beused in tenuredecisions, andthis includestenure density.

Tenure. Promoliwt, and Reappointment.

4 329

On an interesting note, So la was permitted to raise theissue that language in the faculty handbook permitting affir-mative action to be considered in employment decisionscould be construed as a contractual obligation. Specifically.So la argued that since the college did not consider her gen-der as a positive factor, it breached the employment con-tract. The court determined that So la could present this tothe jury as a legitimate breach of contract claim. Affirmativeaction will be discussed in more depth in Section Five, but nis important to note here that colleges or universities may berequired to abide by language in institutional policy state-ments promoting or authorizing the affirmative action.

Faculty members may be legally denied tenure becausean institution or the department is "over-tenured," and soinstitutions may develop these policies to deal with financialconstraints. For example, three faculty members recentlywere denied tenure by the board of trustees of theUniversity of Massachusetts System because 79 percent ofthe faculty already had tenure (chronicle qf HigherEducation, Sept. 8, 1995). It appears that the only legal basisfor challenging these decisions is the employment contract ifit precludes using tenure density as a criterion for grantingtenure. Faculty members, however, are unlikely to succeedin challenges to tenure-density policies. Court deference toinstitutions in employment matters is very strong. If institu-tions wish to establish tenure density as criterion in reap-pointment, promotion, or tenure decisions and this is clearor not precluded in the contract of employment, courts willnot interfere.

Financial Exigency and ProgramElimination or ReductionSome institutions, faced with heavy budget reductions, mayhe required to eliminate or reduce some faculty positions orprograms. Courts give great deference to an institution'sclaims about its financial situation and its decisions during afinancial crisis (Johnson 1981; Olswang 1992). Institutions,therefore, should always reserve the right to eliminate facul-ty and programs because of financial exigency.

Faculty members negatively affected by these financialdecisions may sue the institution under a number of legalclaims, including denial of due process and breach of c(m-

.10

4 t)

tract (Johnson 1981). The institution, however, may eliminatetenured or untenured positions when it is in financial diffi-culty, as long as the criteria are clear and not arbitrarilyapplied (Olswang 1982). Tenured faculty members at publicinstitutions are entitled to due process before their positionsare eliminated, although tenure provides little protectionwhen an institution is under serious financial difficulty.Many institutions adhere to AAUP guidelines regarding staffreductions, which permit elimination of tenured positions,although they require a finding of "bona fide" financial exi-gency (AAUP 1990). Courts have looked to AAUP guidelineswhen dealing with the elimination of tenured positions forfinancial exigency (AAUP vs. Bloomfield College 1974).

Untenured faculty members, however, have little protec-tion from contract nonrenewals. Courts will look to theemployment contract and other institutional policies andpractices to determine the rights and obligations of the par-ties in these situations. In Knowles vs. Unity College (1981),the college canceled its tenure policy in 1971 due to finan-cial problems. Knowles, who had not achieved tenurebefore the policy was repealed, was not reappointed andwas given no formal statement of the reasons. Knowlessued, claiming that since the college had adopted AAUPguidelines, he was entitled to tenure (he had beenemployed from 1969 to 1978). The court held that since thecollege did not have a tenure policy, he was not entitled totenure. The court noted, however, that the official statementsby the administration, and the AAUP guidelines, may havegiven Knowles an implied contract, entitling him to a con-tract renewal. If the contract guarantees particular noticerequirements, courts will enforce these provisions. InZimmerman vs. Minor College (1972), the court enforced acontract provision giving faculty members who had servedfor more than two years at least 12 months' notice beforebeing dismissed and held the institution liable for the facultymember's annual salary.

The AM IP Standards for Notice of Nonreappointmentrequires 12 months' notice in advance of dismissal for afaculty member employed for more than two years ( AM lP1990). This requirement is sound practice because it pro-vides faculty members with an opportunity to challengechims of financial exigency and gives a faculty member

Tenure, Promotion, and Reappointment 31

opportunity to seek other employment. Furthermore, if thecontract is silent, courts may use the AAUP guidelines asevidence of academic practice.

Courts are reluctant to question an institution's decisionsduring a financial crisis. Administrators usually are permittedto make these decisions without faculty approval, even iffaculty approval was sought in other matters. In Ahmadiehet al. is. State Board of Agriculture (1988), for example,tenured faculty members, whose positions were eliminatedas a result of a reorganization of academic programs at theUniversity of Southern Colorado, alleged that the governingboard's decision failed to follow certain handbook proce-dures. Specifically, the faculty members alleged that all rec-ommended program changes had to be approved by thefaculty senate. The court construed the language as onlyapplying to faculty-generated proposals. And the court heldthat the board's authority over curriculum and programdevelopment was limited only by state law, and the facultysenate could not be vested with such authority under statelaw.

In contract matters, the institution has a great deal ofdiscretion in determining its reappointment, promotion, ortenure criteria. The institution may base its decisions upontenure quotas or the financial situation of the institution.Institutions, however, should explicitly and unambiguouslystate how tenure is to be conferred, what criteria wit beused, and under what situations faculty members will bedismissed. Furthermore, institutions should give facultymembers adequate notice of nonrenewal, and the noticeshould indicate that the reason for nonreappointment isfinancial exigency. This protects the faculty members repu-tation, and in public institutions the threat to a faculty mem-ber's reputation implicates "liberty interests'," necessitatingdue process protection (Johnson 1981, p. 302).

Collective BargainingCollective-bargaining agreements (that is, faculty union con-tracts) are common sources of contractual rights and obfiga-tions for faculty members and institutions, but they presentsome of the most complex legal issues. Collective bargainingis one of the few areas in which institutknis must deal with

"1.iberty interests- are discussed more extensively in Section Three.

32

4 BEST COPY AVAILABLE

"outsiders", for example, labor-relations boards, arbitrators,and, of course, the courts (Kap lin and Lee 1995). Collective-bargaining issues also force institutions to grapple with majorpolicy issues: To what extent do collective-bargaining agree-ments force conflicts between administrative license andfaculty self-governance? Can traditiohal collective-bargainingsubjects such as seniority be reconciled with tenure and mer-it? And how does the participation of the "outsiders" affectinstitutional autonomy? (Kap lin 1985).

Collective bargaining is important for several reasons.Most significantly, if the faculty at a particular institution isunionized, then the institution may have to negotiate with itfor reappointment, promotion, or tenure policies and proce-dures. In some states, almost all faculty members at publicinstitutions are unionized, and many faculty in private insti-tutions also bargain collectively with their institutions.Because there is more strength in numbers, collective bar-gaining gives the faculty more power to negotiate with theirinstitutions about employment matters. Furthermore, at pri-vate institutions, faculty members are allowed to strike ifthey are unable to agree on some aspects of their contract.Faculty at public institutions usually are prohibited fromstriking, but there are other remedies available to them.

Administrators also may find collective bargaining advan-tageous. Collective bargaining allows the faculty to negotiatewith the institution as one voice, rather than many.Furthermore, problems may be channeled into a grievanceand arbitration procedure (as is often called for in thesetypes of contracts). The use of binding arbitration often ischeaper than litigation.

Private collective bargaining is governed by federal legis-lation: the National Labor Relations Act of 1935 (NLRA) assubsequently amended. The National Labor Relations Board,or NLRB, has jurisdiction over the certification of unions andcomplaints of unfair labor practices, and it makes its deci-sions on a case-by-case basis. The NLRB extended its juris-diction to faculty members in 1971 in C.W. Post Center (ilLong Island University (Kap lin and Lee 1995).

Public collective bargaining is governed by state law, notby the federal NLRA. Thirty-five states permit at least someforms of collective bargaining in higher education. Often,state law covers public employees in general and makeslittle distinction for faculty members (Kap lin and Lee 1995).

Tenure, Promotion, and Reappointment 33

It is difficult to generalize about public collective bargainingbecause the law varies between states, and there are fewadministrative or judicial precedents. Many state labor-rela-tions boards and courts, however, are guided by the federallaw principles and thus the issues discussed in this reportalso may apply to public institutions.

Religious institutions and collective bargainingThe issue of whether religious institutions are subject toNLRB jurisdiction is unsettled and as a result will not befurther addressed in this report. The Supreme Court ruled inNLRB vs. Catholic Bishop of Chicago (1979) that Congress didnot intend for the NLRB to have jurisdiction over teachers ina church-related school. This case, however, did not involvehigher education. The very few cases that have involvedNLRB jurisdiction over religious institutions have notresolved this issue.

The collective-bargaining agreementWhen faculty members decide they want to bargain collec-tively, representatives can request that the institution bargainwith the faculty as a group (that is, with the union). An insti-tution should wait until the union is certified by the NLRB orstate labor-relations board before bargaining with it becauseit is illegal to exclusively bargain with a union that is notsupported by a majority of the faculty (Kaplin and Lee1995). Once the union is certified as the bargaining agent ofthe faculty, it is the exclusive bargaining agent for the facultyno matter if other faculty members become union members,are not willing to be represented, or agree with the terms ofthe collective-bargaining agreement. In Neiman vs.Kingshorough Communi(y College (1989), a faculty memberfiled a breach-of-contract claim when he was not reappoint-ed by the college. The collective-bargaining agreementcalled for a three-step grievance process, hut the facultymember refused to request binding arbitration, the third stepof the process. The court dismissed the faculty member'slawsuit, holding that his sole remedy lay in the grievanceprocedures called for by the collective-bargaining agree-ment.

The institution and the unicm may new a iate on any sub-ject, although some subjects are considered "mandatory,"some "permissible," and others "prohibited." A mandatory

34r.

subject must be negotiated (salaries, for example). A permis-sible subject is one for which the parties may, but are notrequired to, negotiate (faculty lounges, for example). Bothparties must agree to negotiate over permissible subjects. Aprohibited subject, of course, such as a fire-alarm system,may not be negotiated.

Mandatory subjects must be negotiated and includewages, hours, and other terms and conditions of employ-ment. Failure to bargain in good faith (honestly and fairly)about mandatory subjects is considered an unfair labor prac-tice (Kap lin and Lee 1995). The question of whether theterms for reappointment. promotion, or tenure are consid-ered mandatory is difficult to answer. Some courts have heldthat rules governing tenure (such as the criteria and way thecriteria are measured) are not mandatory subjects for negoti-ation. For example, a New Jersey court held in Association

Newiersey State C:ollege Faculties 1.s. Dungan (1974 ) thatthe authority to determine the tenure criteria had been dele-gated to the board of education by state law, and thustenure criteria were not negotiable. Other courts have deter-mined that tenure rules are negotiable.

In flackel i. Verinont State Colleges (1981), for example,a Vermont court held that promotion and tenure issues arenegotiable under its state labor laws. Five faculty membershad been granted tenure by their college presidents. hut thechancelkw of the Vermont State Colleges asked the board oftrustees to override the college presidents actions. Theboard claimed that promotion and tenure could not henegotiated and that it had authority over those matters. Thecourt determined that the collective-bargaining agreementgave college presidents the power to make final determina-tions in promotion and tenure cases.

Even in states in which tenure niles are not negotiable.the faculty may be abk. to negotiate with their institutionsfor the process to he used in making such decisions. InSnitow vs. kutgers tWirersity (1986), a New jersey court heldthat although the criteria for determining tenure are notnegotiable, the pn)cess to be k ilk med is. A faculty memberhad been denied tenure and filed a grievance. The grievancecommittee determined that the tenure committee acted arbi-trarily by permitting a perm wi km iwn to he biased againstthe faculty member's research to vote on her application.Under the collective-bargaining agreetnent she had to

Tenure. Promotion. and Reappointment 35

exhaust all her administrative remedies before suing, but thefaculty member filed the lawsuit before the review processwas completed. The court held that the grievance processwas properly negotiated and dismissed her case because shedid not exhaust her administrative remedies before filinglitigation.

Eligibility offull-time faculty membersfor collective bargainingThe NLRA and many state labor laws exclude "supervisors"from their coverage, and courts have created a "managerial"exclusion. The cases involving faculty members havefocused on the "managers" exclusion, not "supervisors." Themajor issue tbr many institutions, therefore, is whether theirfaculty members are "managers," thereby making them ineli-gible to bargain as employees. Institutions may bargain withfaculty members considered "managers"; but they are notrequired to under federal or state labor law, and any agree-ment so negotiated is not enforceable in court by the institu-tion or the union.

What are "managers"? Managers are those employees Nvhoare involved in developing and enforcing the employer'spolicies. The rationale for excluding supervisors from NLRAprotection is that employers should be able to expect loyaltyfrom them. The judicially created exclusion of managers isrationalized on the notion that managers have access tobusinesses' confidential information. Courts have notfocused on whether faculty members should be consideredmanagers but whether they are. And courts have made thesedeterminations on a case-by-case basis. The Supreme Court,in NLRB vs. Yeshiva Univemity (1980), addressed this issue,probably causing more confusion and litigation and creatingmuch controversy in academia.

NLRB vs. Yeshiva University (1980)In 1975, the faculty at Yeshiva University attempted to forma union and sought certification from the NLRB. The univer-sity opposed the petition on the grounds that the facultymembers were managerial or supervisory and thereforeexempt from NLRA coverage. The NLRB certified the union.The university refused to bargain with the union, claimingthat the faculty members were heavily involved in institu-tional governance and so it was not required to recognize

36

r- )0 kr

the union. When the union filed an unfair labor practicecomplaint against the university, the NLRB sued in federalcourt to seek enforcement of its decision. The SupremeCourt, by a mere 5-4 majority indicating the great disagree-ment within the court, held that Yeshiva's full-time facultymembers were "managerial" and excluded from NLRA pro-tection.

The court defined managerial employees as those whodevelop and enforce employer policies. The Yeshiva faculty,the Supreme Court determined, were "unquestionably" man-agerial because they exercised authority over academic mat-ters (the offering and scheduling of courses, teaching ofcourses, grading policies, and admission and graduationstandards, for example), administrative matters (they maderecommendations regarding the size of the university, thetuition charged, and the location of the school), and facultyemployment matters (they made recommendations in allhiring, tenure, sabbaticals, dismissals, and promotion cases).The court noted that although the administration had thefinal decision in these matters, the overwhelming majority ofrecommendations were implemented.

The Supreme Court was not willing.to hold that facultymembers at all institutions were managerial. The court indi-cated which institutions' faculty were permitted to bargaincollectively:

It is plain, for example, that prgfessors may not be exclud-ed merely because thvy determine the content githeir owncourses. evahtate their own students, and supervise theirOwn research. Mere thus may be institutions cy' higherlearning unlike Yeshiva where the faculty are entirely orpredominantly non-managerial. 77.)ere may also be/acuil-ty members at Yeshil'a and like universities who properlycould be included in a bargaining unit. It ,nay be that arational line could be drawn between tenured anduntenured faculty members, depending on how a filcultyis structured and operates (pp. 866-7).

There were four dissenters in the case who disagreed withthe majority that these (or Perhaps all) faculty memberswere inanagerial. Justice William Brennan, writing for thedissenters, claimed that the administratkm retained the ulti-mate decision-making authority at the university, not the

Tenluv, Pmmotion. and Reappthament 37

faculty. Furthermore, he contended, the board has alwaysconstrued managerial to mean those employees who are"true representatives of management.- Faculty members. Onthe other hand, influence deciskm-making solely hecause oftheir collective eNpertise. not because they are managers orsupervisors. They are not accountable to the administrationnor are their interests necessarily aligned. Brennan claimedthat to say that a faculty member's pr(Aesskmal competencecould depend on his or her loyalty to the administratkm is"antithetical- to the concept of academic freed(mt.

The managerial exclusion, apparently, applies only tothose faculty at n't shiva-like- or "mature' universities. Thiscase seems to indicate that faculty members at research insti-tutions may not he covered under the NLIZA. But even atthose institutions, it is unlikely that all faculty can he exclud-ed from collective bargaining; part-time faculty members,instructors, lecturers, visiting professors, and untenured pro-fessors may be considered sufficiently nonmanagerial andable to bargain collectively (Kap lin and Lee 1995 I.

Yeshiva and Public Collective BamainingWhile }i,shiva attempts to determine who may bargain col-lectively in private higher education, it also impacts colk.c-five bargaining in the public sector, in addition to pot( itiallvdeterring faculty members at public institutions fnint assum-ing more active roles in institutional governance. the Yeshivadecision is likely to affect Iniw states develop collective-bargaining laws; and because state labor laws are similar tothe NLIZA, state courts and labcir-relat k ins boards may usethe decision to guide their interpretation of these laws(Nagle 19941.

In Cniversio. qf Pittsburg!) ( 1990), a faculty union soughtto bargain collectively with the university, claiming that thefaculty were not managerial. and Pennsylvania's law sin mldnot be interpreted to consider them managers. Tlk. ersi-ty claimed that the faculty were managerial under theYeshiva definition, and the state law shoukl he interpretedconsistently with Yeshiva. The faculty and the university hadagreed that the governance structure was similar to that ofYeshiva University, and so the issue in this case was whether

'The Supreme Cutlil used this term hut khi.1 ill11 define it Ptcsimi.thk. Iipphe(t II) lafge research institutions in %thich Lica\ 11,Rt: mitt int MI% inmany ;treas.

$8

51

the faculty at the University of Pittsburgh could bargain col-lectively. The hearing officer for the Pennsylvania LaborRelations Board held that the Yobiva analysis was appmpri-ate for determining the status of faculty at Pennsylvaniainstitutions. Stressing the faculty members' participation inuniversity gov-mance, the hearing officer determined thatthe full-time faculty at the University of Pittsburgh weremanagerial (see Nagle 1994).

The hearing officer's ruling was reversed by the fullboard, which ruled that the faculty may unionize. But ironi-cally, the faculty voted to reject union representation (Kap linand Lee 1995). The leshita decision applies to collectivebargaining at private institutions, an area covered by federallaw (that is, the NLRA). Public collective bargaining is gm-erned by state law. The application of Yeshiva to collectivebargaining at public institutions has not been completelysuccessful. Some states permit its public employees, includ-ing faculty members, to unionize. But the Yeshiva decisionhas had an impact on public labor law. A few states amend-ed their labor laws to more align them with the lesbiraholding (see Nagel 1994). And as we saw in the hearingofficer's ruling in University ifl'ittsbuigh (1990), state courtsand labor-relations boards may interpret their laws asrestricting the unionization of faculty members consideredmanagerial.

Are faculty members at private institutionseligible for collective bargaining?The answer to this question depends on whether the facult,.members are so sufficiently involved in institutkmal gover-nance so as to he termed managers. Full-time faculty mem-bers at large research institutions are probably managers, butthis may not be necessarily so. The NLRB makes rulings onwhether faculty members are eligible for collective bargain-ing on a case-by-case basis, which makes it difficult to gen-eralize to all institutions. The case law, however, doesprovide some (but not much) assistance to administrators. Atinstitutions in which the faculty has no input into policydecisions, key administrators make most of the importantdedsions, and the faculty's recommendations are not consis-tently accepted, the faculty is likely to be eligible to unkmize(see BradPrd College 1982; NLRB vs. Florida MemorialCollege 1987; NLRB vs. Stephens Institute 1980). In Loivtto

Tenure, Pronudftm, and Reappointment .19

t. (..)

Heights College vs. NLRB (1984), a court determined thatsince the faculty role in institutional governance occursmainly through committees, they were not managerial. Thecourt noted that in light of the infrequent nature of commit-tee work, the mixed membership of the committees, and thelayers of administrative approval required for many deci-sions, faculty participation in institutional governance fell"far short" of that contemplated by Yeshiva.

Faculties that have substantial decision-making authorityare likely to be considered managerial and therefore notprotected by federal or,state law. Administrators in thesecases may refuse to negotiate with their faculties' representa-tives. As we saw in Yeshiva, a faculty that essentially con-trols the curriculum, grading policies, course offerings andscheduling, admission and graduation standards, hiring,promotion, and tenure decisions and other important areasis likely to fall within the judicially created managerialexemption to the NLRA. In addition, if the administratkmaccepts the overwhelming majority of faculty recommenda-tions, the managerial exemption may apply (see Duquesne(niversity 1982; Ithaca College 1982; Thiel College 1982). TheNLR13, however, also has certified a faculty union, evenwhen the administration accepts the majority of the faculty'srecommendations (Lewis (!niversity 1982).

The NLRB's policy of not creating general standards forwhen faculty members can be considered managerial andthus unable to bargain collectively leaves administrators and(aculty members with little guidance and few legal answers.The decisk)ns appear contradictory, and the NLRB has nottaken into consideration the nature of faculty governance:rather, the NLRB has chosen only to limit its analysis to thecriteria established in Yeshiva (Lee and Begin 1983).

Certain conditions seem to influence NLRB decisions:

I. The degree to which faculty recommendations areaccepted;

). The role of key administrators (deans and departmentheads, for example) with regard to these recommenda-tions; and

3. The language in the employment contract and other insti-tutional IN flicy statements purporting to reserve the insti-tution's managenlent to the administration or which givesfaculty significant governance authority and the degree to

40

56

which the actual practice matches the words in thesedocuments (Lee and Begin 1983).

Since these conditions are controlled by the administration,the issue of whether faculty members are managerial maydepend on the make-up of the administration and its beliefsabout faculty self-governance.

Apparently, the Yeshiva decision prevents unionization atlarge research institutions (or Other "mature" institutions) inwhich faculty governance is firmly established and its con-trol over reappointment, promotion, or tenure decisions isstable enough to survive changes in administrative person-nel (Lee and Begin 1983). Faculty members and adrninistra-tors at all institutions wishing to address collective-bargaining issues, however, should consult with experiencedadministrators, and most importantly, the expert advice ofattorneys specializing in academic labor law.

XYZ College ScenariosLet us return to the scenarios described at the beginning ofthe section. Clearly, if the college is experiencing financialdifficulties tenure would not protect Professor A. If ProfessorA has tenure, he may be able to resume his position(because the college only eliminated untenured positions) orthe college may have to prove that the financial difficultieswarranting the dismissal of a tenured faculty member werebona fide. It appears, however, that Professor A's claim totenure probably was not valid. The handbook stated thatfaculty members must prove merit in three areas beforetenure is conferred and also that faculty members imistapply for tenure in their sixth year. This language indicatedthat tenure is not to be conferred automatically after thecompletion of a seventh year of service.

The main question here is whether Professor A shouldhave been eligible to apply for tenure. The answer dependson how "full time" is defined. The handbook stated that onlyfull-time faculty members are eligible for tenure, and astrong argument exists that Professor A had not been a full-time faculty member for seven years. Courts likely will lookto other documents and institutional custom to determinewhether Professor A was "full lime" fiw the necessary periodof time. It is possible that Professor A may prove that thecollege generally considers some adfuncts as "full time" in

...the issue ofwhether facultymembers aremanagerialmay depend onthe make-up ofthe administra-tion and itsbeliefs aboutfaculty self-governance.

Tenure, Promotion, and Reappointment 4 1

similar situations. The assurances by the department chair-person also may he evidence of this custom as well.Ordinarily, however, courts will look to the plain meaning ofthe language in the employment contract, and this meansthat Professor A was not a full-time faculty member for thenecessary period of time.

The issue of whether faculty members at XYZ Collegemay form a union is very complicated. Much of it dependson whether they were managerial. The NLRB would consid-er the extent to which they are involved in institutional gov-ernance, how administrators deal with faculty input, andwhether the administration overwhelmingly accepts the fac-ulty's l'ecommendations. It appears that the faculty hadextensive authority over academic matters (as was the casein Yeshiva). Although it was not clear how often the admin-istration overturns its recommendations in employment mat-ters, the faculty had less autonomy in this area than in theacademic area. Its participation in committees can be viewedin two ways: On one hand, the administration was involvedin the governance of institution through committees and itsinput was often sought; on the other hand, its authority wasdiminished by committee participation, which may have hadmixed membership and met infrequently. It was unclearhow the college viewed these committees and whether itsrecc)mmendations were significantly accepted. The NLRBand courts have dealt with faculty members eligibility forcollective bargaining on a case-by-case basis, making it diffi-cult, at this point, to provide many general gukling princi-ples in these matters.

Summary'Hie faculty contract of employment includes the letter ofappointment and pn)fessional and institutional policies gov-erning reappointment, promotion, or tenure decisions.These policies often include the faculty handbook and anumber of AAUP policy statements, if referenced. But evenif these documents are not explicitly incorporated into thecontract of employment, courts may refer to them as evi-dence of academic practice, custom, and usage, especiallywhen the contract is inconsistent or ambiguous. Admin-istrators should recognize that the 1940 Statement ofPrinciples is incorporated into the employment contract by

42

5

many institutions, and courts commonly refer to it in resolv-ing tenure disputes.

Administrators should consider reviewing their policystatements to ensure that they are explicit, unambiguous,and consistent, and that they illustrate the desired rights andobligations regarding rear pointment, promotion, or tenuredecisions. Careful attention also must be paid to those prac-tices not specifically addressed in any written document.Occasionally, a particular practice (customarily providing astatement of reasons, even if not specifically called for in thecontract, for example) may be incorporated as part of theemployment contract. Furthermore, the promises and assur-ances of key administrators can bind the institution to acontractual obligation and so the institution should clearlyindicate and communicate which administrators can bind theinstitution to an employment contract.

Collective-bargaining agreements may govern how facultymembers are reappointed, promoted, or tenured. Federallabor law, which governs private collective bargaining, doesnot cover faculty members who are considered managers.Thus, the institution may refuse to bargain with its represen-tatives. It appears that faculty members at large researchinstitutions may be considered managers. Faculty membersat public institutions are permitted to bargain solely basedon authority granted under state law. Some states permitfaculty members to unionize. Collective bargaining is anextremely complex and unsettled area of law, and institu-tions should seek expert legal and administrative assistancein dealing with such matters.

Tenure. Prynnotian, and Reappfintnient

CONS TITUTIONAL RIGHTS IN EMPLOYMENT DECISIONS:DUE PROCESS, FREE SPEECH, AND ACADEMIC FREEDOM

Consider these scenarios:You recently were notified that you were deniedtenure at Eastern State University, a public researchinstitution, and that your services no longer would berequired as of the end of the next academic year. Yourdepartment narrowly voted in favor of tenure, but thedean, the vice president for academic affairs, and thepresident rejected your application. The faculty hand-book states clearly that the probation period is sixyears, at the end of which the faculty member willhay,: tenure or be awarded a one-year terminal con-tract. The handbook also states tenure is not automat-ic and that "tenure can only be conferred by the boardof trustees after a determination that the faculty mem-ber has proven merit in teaching, research, and ser-vice." The handbook adds further that the universityabides by and supports the 1940 Statement ofPrinciples. You have been employed at the universityfor seven years, but three of those years were as aninstructor. Under university policy, instructors are noteligible for tenure. You believe that since you havebeen employed as a full-time teacher for longer thansix years, you should have tenure under the universi-tys policy.

You also believe you were denied tenure in retalia-tion for public criticisms you have made regarding theuniversity's investment in South Africa and its treatmentof women and people of color. The university claimsthat your teaching skills are "poor,- and that you havevery few publications.How do you think a court would rule regarding your

claim for tenure? Does the Constitution provide you withany protection? I low would a court rule regarding yourclaim that you were denied tenure in retaliation for yourcriticisms of Eastern State University?

This section addresses the rights and responsibilities offaculty members and institutions under the Constitution.Faculty members at public institutions have been able loclaim numerous rights under the Constitution. This sectkmfocuses on rights established by the First and 1.ith amend-ments, specifically the rights of due process, free speech,

Tenure. Promotion. and Reappointment 45

and academic freedom as they relate to reappointment, pro-motion, and tenure decisions. This discussion focuses solelyon public institutions, since private institutions are not sub-ject to these particular constitutional protections. Never-theless, administrators at private colleges and universitiesshould be aware that if they guarantee due process orfreedom-of-speech rights in their contracts, courts willrequire that these institutions provide their faculty membersthe same protection expected by the Constitution. In otherwords, wurts will define due process and free speech just asthey would for constitutional reasons.

Due Process rights arise from the 14th Amendment andapply to faculty members who have "property" or "liberty"interests. The Constitution does not guarantee any propertyor liberty interests; it only protects their being abridged"without due process." Essentially, the 14th Amendmentprohibits the institution from depriving or denying a facultymember his or her "property" and "liberty" interests withoutfirst providing him or her with certain procedural safe-guards. This section will address the legal parameters of"property" and "liberty" interests.

Institutions also are prohibited from denying reappoint-ment, promotion, or tenure to a faculty member because ofthat faculty member's exercise of his or her freedom ofspeech or exercise of academic freedom. The second halfof this section will focus on what constitutes freedom ofspeech and academic freedom and the institution and facultymember's rights and responsibilities regarding theseinterests,

Due Process Rightstinder the 14th Amendment no state shall "deprive any per-son of life, liberty, or property, without due process of law."Faculty members at public institutions are entitled to dueprocess if they have a property or liberty interest in theiremployment. Courts have considered tenured faculty mem-bers as having a "property interest" in their employment andso they are entitled to certain due process rights before theycan be dismissed. Untenured faculty members do not havea legitimate expectation of cc mtinuecl emplt winent unliketenured faculty members beyond the terms of their con-tracts. In fact, they are not legally entitled to be informed ofthe reasons for nonreappointment, although many institu-

46

tions provide such information. These faculty members, onthe other hand, have a "property interest" in their employ-ment while their contracts are in effect. For the duration oftheir term contracts, they have legally enforceable agree-ments. Untenured faculty members also may sometimeshold de facto tenure, which entitles them to the protectionafforded by the due process clause of the 14th Amendment.

Untenured faculty members also are entitled to dueprocess rights if they can prove that they have a libertyinterest. A liberty interest is attained if the grounds for thenegative reappointment, promotion, or tenure decisionaffects their good name or reputation in the academic com-munity or imposes on them a "stigma" or "disability" thatprevents them from obtaining employment elsewhere. Inthese situations, the faculty member would be entitled tocertain due process rights before the decision is finalized.

Due Process rights do not guarantee tenure, promotion,or reappointment, but these rights ensure that faculty mem-bers receive fair treatment. In the academic-employmentdomain, these rights include a statement of the reasons fornonrenewal, notice of the names and nature of the testimo-ny of witnesses, an opportunity to he heard within a reason-able amount of time, and a hearing before impartialmembers of the institution who possess some academicexpertise (Hustoles 1992).

The Supreme Court established the criteria for whetheruntenured faculty members in public institutions have dueprocess rights in Board of Regents of State Colleges vs. Roth(1972) and Perry us. Sindermann (1972). Essentially, theSupreme Court determined that untenured faculty membersare entitled to due process rights when they have a "proper-ty interest," which is established by the contract of employ-ment or state law; or a "liberty interest," which occurs whencharges made against them impose a "stigma" or "disability"that prevents them from obtaining other employment.

Board of Regents of State Colleges vs. Roth (1972)David Roth had been hired as an assistant professor of polit-ical science at Wisconsin State University-Oshkosh fcir afixed term of one year. He was not rehired after his contracthad expired and given no reasons for the decision or anappeal. A state law provided that faculty members wereeligible for tenure after four years of continued service.

Tenure, Promotion, and Reappoinunent 47

Roth sued, alleging that the university violated his 14thAmendment right to due process. The Supreme Court ruledthat Roth did not have a right to a hearing or a statement ofreasons because he had neither a liberty nor property inter-est. in his employment.

The court held that the 14th Amendment protects facultymembers' interests in "specific benefits." To have an interestin a specific benefit, the court reasoned, faculty membersmust be legally entitled to it; simply having an "abstractneed or desire for it" is not enough. Property interests, thecourt indicated, are created and defined by existing rules orunderstandings that originate from state law, contracts, orthe practices of the institution. In Roth's case, his employ-ment was to terminate at the end of the academic year, andrenewal was not automatic. According to the court's reason-ing, only tenured professors have property interests guaran-teeing constitutional due process rights. Nontenured facultymembers, on the other hand, must look to employmentcontracts for any procedural rights.

Liberty interests under the 14th Amendment also are guar-anteed due process protection. These interests are createdwhen a public institution makes charges against a facultymember that might seriously damage his or her reputation orstanding in the academic community or impose on the facul-ty member a "stigma or other disability" that prevents him orher from taking advantage of other employment opportuni-ties. In Roth's case, the court held that he had not shownthat nonrenewal imposed such a stigma or disability, perhapsfailing to take into account the potential effect on his reputa-tion as a result of a negative employment decision. Thecourt noted that had the board of regents prevented Rothfrom seeking employment at other state universities, then hemight have been able to claim that the state deprived him ofa liberty interest without affording him due process.

Perry vs. Sindermann (1972)Robert Sindermann had been empl()yed as a pr()lessor bythe Texas state college system for 10 consecutive years.After teaching for two years at the Ilniversity of Texas andfmr years at San Antonio Junior College, he became a pro-fessor of government and social sciei ice at Odessa juniorCollege, where he remained empl<)yed for fciur c(msecutive

48

6

years. While thus employed, he publicly disagreed with the.board of regents on a number of issues. After the series of10 one-year contracts, the board of regents decided not torehire him.

Like Roth, Sindermann was given neither an official rea-son for the nonrenewal nor an opportunity for a hearing,which he alkTed violated his right to due process. He alsoalleged that he was released because of his political activi-ties. The Supreme Court held that Sindermann had raised agenuine claim to de facto tenure which, if proved, wouldgive him a property interest protected by the 14th Amend-ment. Sindermann had claimed that the college had a defacto tenure program, and he offered as proof the followingstatement in the faculty handbook:

Odessa Co &we has no tenure system. The administrationcf the college wishes the faculty member to feel that he haspermanent tenure as long as his teaching services aresatislactory and as long as he displays a cooperative atti-tude toward his co-u'orkers and his superiors, and as longas be is happy in his work.

The court held that Sinclermann must be given an opportu-nity to prove that he had a legitimate claim of entitlement tocontinued employment in light of the policies and practicesof the institution. Institutional practices and policies can befound in written contracts, the court indicated, but they alsomay he implied. The court held that Sindermann, employedfor 10 years in the Texas higher-education system, might beable to show from the circumstances of his employment andother facts that there is an "unwritten common law" at hisinstitution that certain faculty members have the equivalentof tenure.

Roth and Sindermann make it clear that the Constitutiondoes not create property or liberty interests; these interestsmust derive from tort law (defamation, for example), contractlaw (the actual words of the contract or the practices of theinstitution, fc)r example), or state law. While faculty membershave the burden of proving that they have a property (tenureor its equivalent) or liberty (that they have been (lelmed)interest, once they do the institutions must establish valklgrounds for dismissing them (Brown and Kurland 1993).

Tenure, Pnnnolion. and ReaMminlmenl 49

Property interestsAs indicated, faculty members have a "property interest" intheir employment, precipitating the need for due process, ifthey have a "legitimate expectation of continued employ-ment*." This legal principle is easy to understand in theabstract, but it often is difficult to apply. Institutions do notalways know when their policies or practices give facultymembers a legitimate expectation of continued employment,and courts have not consistently applied the SupremeCourt's decision. It is always prudent to put reappointment,promotion, and tenure policies and procedures in writing,and they should be adhered to. These materials also shouldbe clear, consistent, and available to all faculty members.

As noted, due process requirements apply only to publicinstitutions because they are subject to constitutionalrequirements. But private institutions do well to followthese guidelines in establishing their procedures becausewhen the institutions policies are fair, courts will upholdtheir decisions, clue process procedures can help the institu-tion avoid or correct mistakes, protect academic freedom,foster faculty confidence, and resolve disputes in-houserather than by courts (Kap lin 1985).

Tenure policies should be clear. In Olson vs. Idaho StateUniversity (1994), also discussed in Section Two, an elec-tronics instructor sued the university after he was deniedtenure, alleging a violation of his due process rights. Olsonhad been employed in a series of five one-year contractsand he became eligible for tenure in his fifth year. Hisapplication was rejected by the president after he was rec-ommended for tenure by the tenure committee, his depart-ment chairperson, and the dean. Olson claimed he had aproperty interest and thus continued employment becausehe had done all that was required and he was recommend-ed by everyone except the president. The court, in uphold-ing the university's decision, looked to the facultyhandbook, which explicitly stated that tenure decisions musthe approved by the board of trustees. Since the presidentrejected the recommendation of tenure and thereby with-held it from the hoard, not all the steps required for tenurewere taken. As an untenured faculty member he was enti-

'Tenured faculty ineinhers have kgititnate expectation of ccintinuedemphiyment, of course. Untenured faculty inenthers have such expectationswhile their contracts are in effect.

50

tled to a year's notice of nonrenewal, which the universityprovided.

As Olson illustrates, courts generally are unwilling to findthat untenured faculty members have a property interest incontinued employment if there are written procedures gov-erning how tenure is acquired. Furthermore, courts rarelywill interfere in the institution's interpretation of the criteriaestablished for reappointment, promotion, or tenure. InCblburn vs. Trustees of Indiana University (1990), two facul-ty members sued the university for denial of tenure, promo-tion, and reappointment, alleging a violation of due process.They were hired in 1979 and continuously reappointed until1985. They claimed that they were entitled to tenure, or atleast reappointment, because they satisfied the written crite-ria for promotion and tenure and that they understood thatreappointment would continue through the probationaryperiod if their performance was satisfactory'. They claimedthat reappointment decisions were fairly automatic foremployees in tenure-track positions. The court rejectedtheir arguments, holding that the written criteria are mereguidelines rather than directives: as such, they do not sub-stantially limit the institutions' discretion to determine whoshould receive tenure or reappointment.

Although the faculty members in Colburn lost the case.the court indicated that where the institution's custom orpractice made reappointment decisions automatic on satis-factory performance. a property interest may exist even ifthere are written policies governing these decisions.Nevertheless, the court determined that the faculty member'sarguments w,re "weak." Generally, the court indicated, thewritten criteria for promotion or tenure are subjective anddo not guarantee automatic renewals.

The court in Colburn indicated that an institution's vrit-ten procedures do not limit its discretion. This principlealso was illustrated in Lovelace vs. SoutheasternMassachusetts University (1986). Lovelace's contract was notrenewed, and he was not provided with a hearing. Ilesued, alleging that his due process rights were violated. I leargued that the Board or Trustees 'I acuity Federatk)n Agree-ment was incorporated by reference into his contract, andthis agreement guaranteed that he would not be deniedreappointment without "justification." The agreement speci-fied the criteria for reappointment and tenure and stated that

....courts rarelywill interfere inthe institution'sinterpretationof the criteriaestablished forreappointment,promotion, ortenure.

Tellttre, PrOilletion, and ReappointMent b SI

in the "development of all recommendations for reappoint-ment or nonreappointment justification of all recommenda-tions must be included" (p. 421).

The university's policy also provided that although thepresident makes the final decision in reappointment cases,the board may review the decision and take further action.The court held that the university's officials did not lose theirdiscretion to make decisions despite the language specifying"justification." This language, the court indicted, merelyfacilitated the president's decision by ensuring that he hadthe opinion of the relevant constituents before making hisdecisions; it did not imply any other rights.

Since the institution's written policies do not limit its dis-cretion in employment matters, oral assurances are even lesslikely to form the basis of property interests. In Lovelace,the faculty member also alleged that after receiving notice ofhis nonrenewal, he was informed by the president (throughthe dean) that if his student evaluations improved he wouldbe renewed after the spring semester. His evaluationsimproved, but he was not renewed. The court held thatwhere a college has written, formalized procedures for reap-pointment, a faculty member cannot claim that he or shesomehow had acquired an expectation of employmentbecause of oral assurances. The president's words, the courtbelieved, only indicated that he would be the judge ofwhether the faculty member show..xl sufficient improvementwarranting renewal.

Other courts have indicated that oral assurances, ifenough and combined with written ones, may give facultymembers a legitimate expectation of continued empk)yment.In Soni I's. Board of Thtstees of tbe ('niversity of Tennessee(1975), discussed previously, the court held that oral andwritten assurances made to the faculty by the departmenthead gave the plaintiff a reasonable expectation that hewould he tenured, even though there was a formal tenureprocess. Soni had been promised by the department chair-person that he would be tenured if he became a U.S. citizen,and he was assured that he was "wanted" and that his"prospects were good." I le also was permitted to enroll inthe university's pension plan. The result of this case, how-ever. was potbably based on the extent, and particularnature, of the assurances. Mere oral pr(tinises, withoutmore, will not create "pr()perty interests."

52

6 /

Soni notwithstanding, courts are extremely reluctant tofind that a faculty member has a legitimate claim of contin-ued employment if written procedures governing tenureexist. Assurances by key administrators or fluctuations frominstitutional policies do not, generally, seem to convincecourts that untenured faculty members have property inter-ests in their employment, thus requiring their institutions toprovide due process before nonrenewing their contracts.Some courts are not even swayed when there is some evi-dence that the negative decision may have been based uponillegal factors. In King es. Board of Regents of 1.':niversity ofWisconsin System (1990). a female faculty member hired asan assistant professor in the School of Allied HealthProfessions at the University of Wisconsin-Milwaukee suedafter unanimously being denied tenure. She alleged that shewas sexually harassed by the assistant dean of the School ofAllied Health Professions and the director of the occupation-al-therapy program and that the reasons for the adverseemployment decision were gender discrimination and retali-ation for her charges of sexual harassment. The court heldthat as an untenured faculty member she did not have aproperty interest in continued employment. Furthermore.although the court found that she was verbally assaulted,fondled, and physically attacked by the assistant dean, shehad to prove that the adverse employment decision wasbased on discriminatoiy motivations such as sexual harass-ment and retaliation for her exercise of constitutionally pro-tected rights. The court did not find evidence that theassistant dean had been involved in the tenure decisk in. andthere was no evidence of discritninatory motivation by thedirector.

De facto tenureThe Supreme Court opened the dcior a- (le facto tenureclaims in Perty es. Sindermann (1972). Faculty membersmay be able to claim that they have tenure or sonic form ofindefinite employment if they can establish that institutionalrules or understandings between themselves and their insti-tutic ins have created a legitimate expectation to c(intinuedemployment. Courts, however, generally are unwilling todetermine that faculty members have de facto tenure wherethere are fOrnial, clear, and explicit tenure policies. andthe;:e policies are adhered to.

Tenure. Pn»nothm, and Reappanbounn S ;

6

In Omlor vs. Cleveland State University (1989). the courtrejected the faculty member's claim to de facto tenurebecause the institution's policies clearly indicated that tenuredecisions must be approved by the board of trustees.Omlor, a faculty member in the business college. was firsthired as a part-time instructor in 1969 and appointed to full-time instructor in 1972. Tenure at the university was gov-erned by a formal written policy which provided that tenurewould be granted by formal action of the board of trustees.

Since 1972. Omlor received a series of seven full-timecontracts. His contracts stated that the probationary periodshould not exceed seven years and that failure to qualify fortenure by the conclusion of the probationary period disqual-ified a faculty memh?r from further employment at the uni-versity. The first few contracts stated that his tenure statuswould be determined by June 1978, but his later contractsindicated that the decision would be made by January 1978.1 ie was informed on May 26. 1978. that the next contractwould be terminal. Omlor had been considered for tenurepursuant to the university's tenure policy. He was recom-mended for tenure by the department chairperson and thedean of the business college but rejected by the college'stenure committee. The board of trustees voted againsttenure. Omlor claimed that he had attained de facto tenurebased on the series of contracts indicating that a decisionwould be made by January 1978 and on the fact that heworked for three years before he became eligible for tenure(giving him more than seven years of service).

The court held that the weight of authority regarding defacto tenure supported the university's contention that anuntenured faculty member has no entitlement to tenure on ade facto basis, where the university has a formal tenure sys-tem providing for the granting of tenure by the board oftrustees. Although tenure need not always be acquiredthrough formal procedures, the court stated, it must hebased on the mutually explicit understanding of the prac-tices and customs of the institution. The three contractsindicating that the tenure decision would be forthcoming onor before Jan. 15, 1978. did not change Omlor's tenure rightsunder the policy nor did his service prior to his appointmentto full-time status.

Perhaps another court might have held differently in

54

6 d

Omlor by finding that any faculty member employed beyondthe probationary period is entitled to tenure by default (seeBeckwith vs. Rhode Island School of Design 1979).Nevertheless, Omlor illustrates the reluctance of the courts tobind an institution to a tenure appointment where the writ-ten policies are explicit as to how tenure is acquired.

On the other hand, courts have not always been consis-tent in their rulings on de facto tenure. In Jones vs.University qf Central Oklahoma (1993), the court found thatan untenured faculty menther may have a legitimate claim tocontinued employment despite the existence of a formaltenure policy. Jones sued the university alleging that hisdue process rights were violated when he was deniedtenure. The university argued that he was denied tenurebecause he failed to satisfy the formalized 19-step processused to evaluate tenure applications. Jones argued that theuniversity's past practices and repreSentations entitled him tobe evaluated under an informal and less strenuous "localtenure" process, which considers longevity, does not requirea formal application, and "where tenure i awarded as amatter of course."

The court held that a legitimate claim of "entitlement totenure" in the state is defined solely through the applicationof state contract and employment law. If under contract oremployment law faculty members established an impliedright to continued employment through alleged unwritten"local tenure- procedures. they have a property interest pro-tected by the due process clause of the 14th Amendment,even where there are written procedures governing tenure.Jones, the court held, was entitled to prove that he hadattained tenure through unwritten "local tenure" procedures.As the Supreme Court indicated in Peny vs. Sindermann, ifan action by the institution creates the expectation ofemployment, the faculty member is entitled to due processto determine whether he or she has tenure. Jones is an illus-tration of what can happen when an institution fails to fol-low Its written policies. Had the university clone so, itwould have prevailed.

The Jones ruling is an exception to courts' general refusalto allow faculty members to prove de facto tenure where theinstitutions have a formal tenure policy. hit as indicatedthroughout this report, institutions that do not wish to

Tenure, Plynnotion, and Reappointment 55

become involved in such lawsuits should develop formal,clear, explicit, and widely distributed tenure procedures andfollow them.

Liberty interestsEven though Roth and Sindermann indicated that certaindismissals would implicate liberty interests (that is, when thefaculty member's reputation is threatened, affecting his orher ability to obtain other positions), the Supreme Court hasmade it difficult to establish such an interest in academic-employment decisions. In Bishop vs. Wood (1976), a policeofficer who had been discharged and orally informed of thereasons in a private meeting sued, claiming a denial of dueprocess. Regarding liberty interests, the court held thatcharges communicated in private to the employee cannotform the basis for a deprivation of a liberty interest, even ifthe charges are false. This decision is important in thefaculty-employment context, in that decisions, and the rea-sons for them, rarely are made public.

Peer-review information generally is confidential, butthere are situations in which this kind of information may bedisclosed or made public (at public institutions subject to"open records" laws, for example). In these situations, afaculty member may be able to show that the charges madeagainst him or her implicated liberty interests, thus requiringthe institution to provide due process rights (an opportunityto be heard or to challenge witnesses). Charges of dishon-esty, immorality, or professional incompetence are examplesof "stigmas" preventing the faculty member from obtainingother employment. Public institutions should he carefulabout the reasons they give, to whom they communicate thereasons, and the evidence on which they rely in reappoint-.ment, promotion, or tenure decisions. They also shouldprovide a hearing or some opportunity to be heard on anyallegations that may damage a faculty member's reputation.

Some courts have refused to hold that the faculty mem-ber's liberty interests were implicated in a negative empkw-ment decision when no reasons are given. In Olson vs.Naha State t 'niversity( 1994), discussed previously, the facul-ty member also alleged that he was not granted tenurebecause of charges of insubordination, and these chargesimplicated his liberty interests, entitling him to a hearingbefore he was dismissed. The court held that since no ma-

sons were given for the decision against him, Olson couldnot claim that his liberty interests were violated. This deci-sion is consistent with Bishop vs. Wood (1976), which heldthat charges that are not made public cannot form the basisfor liberty-interests claims.

Although the university prevailed in Olson, it is wise toprovide reasons for the decision. And if the decision is basedupon potentially defamatory charges, the institution would bein sound legal (and moral) standing if it provides the facultyii-tember with an opportunity to challenge the decision.Providing faculty members with an opportunity to contest theallegations may not avoid a lawsuit, but courts will lookfavorably upon institutions that have fair procedures.

Freedom of Speech and Academic FreedomUntenured faculty members have limited, if any, due processrights in job renewals. This does not mean that they haveno other constitutional rights. Fa Culty members may not bedenied reappointment, promotion, or tenure as a punish-ment for their exercise of First Amendment rights. And aswe will discuss in Section Four, faculty members at publicinstitutions also have a constitutional right not to be discrim-inated against on the basis of race or gender or any otherillegal motive.

First Amendment rights include freedom of speech,freedom of expression, and freedom of religion. Facultymembers are entitled to academic freedom, which encom-passes all such freedoms. These freedoms become "consti-tutional" at public institutions. The right to speak freely onany matter goes by the name "academic freedom" whenexercised in the context of a faculty member's teaching,research, or service duties. Academic freedom is not specifi-cally mentioned in the First Amendment or anywhere eke inthe Constitution. The Supreme Court has held, however,that academic freedom is "a special concern of the FirstAmendment" (Kepshian vs. Board qf Regents 1967). Facultymembers and institutions have academic freedom rights, andtheir rights may conflict on occasion. Institutions have anacademic freedom right to determine "who shall teach," andfaculty members have an academic freedom right not to bepunished for what they say or how they express themselves.There are, of course, limits to these rights, and these limitsare the focus of this section.

lentire. Promotion, and Reappointment 57t .

First Amendment rights apply at public institutions.Many public and private institutions, however, have incorpo-rated the AAUP's academic freedom principles into theiremployment contracts. Faculty members' academic freedomrights at private institutions, therefore, may be protected bycontract. There also has been a recent trend toward incor-porating academic freedom principles in collective-bargain-ing agreements or other organized labor activity (Olivas1989). Furthermore, state law also may provide freedom-of-speech or academic freedom rights to faculty members atboth private and public institutions.

History of legal recognition of academic freedomThe notion of academic freedom can he traced to 19th-century Germany, where the concepts of lehrfreihell(freedom of teaching) and lernfreibeit (freedom of learning)were practiced. Even though courts rarely overturnedemployment decisions, campus conflicts over evolutionaryscience and populist economics helped the profession per-suade governing boards not to punish faculty members fortheir research findings and to grant tenure to protectacademic freedom (Metzger 1993h).

As a result of the McCarthy era, the legal basis ofacademic freedom was expanded by constitutional law andcontract law (Metzger 1993b). The Supreme Court firstmoved toward recognizing academic freedom as a constitu-tional issue in Meyer z. Nebmska (1923), when the courtstruck down a state law prohibiting foreign-language instruc-tion in private schools (Van Alstyne 19931)). The concept ofjudicially recognized academic freedom was further devel-oped in Sweezy t's. Neu' Hampshire (1957). In Sweezy, thecour«werturned the contempt conviction of Paul Sweezy,who refused to disclose what he discussed in a class lectureand his knowledge of communist-party activity in the state.Although the court focused on whether Sweezy had beendenied due process, not academic freedom, the majorityopinion noted that teachers and students "must alwaysremain free to inquire, to study and to evaluate, to gain newmaturity and understanding; otherwise our civilization willstagnate and die" (p. 250).

Justice Felix Frankforter, in a lamous concurring opinion,defended academic freedom. Ile wrote that -when weighedagainst the grave harm resulting from governmental intro-

sion into the intellectual life of a university." the govern-ment's justification that it waited to prevent subversiveactivities is inadequate (p. 261). The university, Frankfurternoted, provided:

that atmosphere which is most conducive to speculation,experiment and creation. It is an atmosphere in whichthere prevail "the four essential freedoms" qf a unit,er-sity to determinelbr itself on academic grounds whomuy teach, what may be taught, how it shall be taught,and who may be admitted to study... (pp. 262-3).

The Supreme Court reinforced academic freedom's protec-tion by the First Amendment in Keyishian vs. Board qfRegents (1967), when the court struck down New York'sloyalty laws and regulations. Justice William Brennan wrote:

Our Nation is deeply committed to sqleguarding academicfreedoni, which is of transcendent value to all 0/us andnot merely to the teachers concerned. Mat freedom istherefore a special concern ofthe First Amendment, whichdoes not tolerate laws that cast a pall of orthodoxy orter theclassroom (pp. 603).

Although Sweezy and Keyishian both involved individualfliculty members, the language of the court refers to bothindividual and institutional academic freedom. Two othercases specifically give institutions academic freedom rights:University of califbrnia Regents vs. Bakke (1978) .and Regentsof the University of Michigan vs. Ewing (1985). In Bakke, theSupreme Court invalidated particular elements of the univer-sity's affirmative-action admissions policy, but Powell wrotethat the university's concern about a diverse student bodyinvoh:vs a First Amendment intere:A. Institutions, therefige,may use race as one factor in admissions decisions. Hisdefense of educational diversity was an acknowledgmentand defense of the academic freedmn of an institution (Poch1993).

In Ewing, the Supreme Court upheld the university'srefusal to allow a student to retake a test he had failed andthe subsequent dismissal of the student from a universityprogram. The court held that when dealing with "academicdecisions, judges should show great respect fm prokssional

Tenure. Prontotimt, and Reappointment.

59I

judgment" (p. 225). In these cases, the Supreme Court jus-tices supported institutional academic freedom and estab-lished it as a value protected by the First Amendment.

Untenured faculty members and academic freedomAcidemic freedom has been the subject of much discussionand analysis (Poch 1993; Van Alstyne 1993a). It also is oneof the most sacred of the faculty members' rights.Contemporary academic freedom issues include: artisticexpression through visual modes such as paintings, draw-ings, photographs, motion pictures, plays, and sculptures;political correctness; hate speech; and academic freedom inchurch-related colleges and universities (Poch 1993). Highereducation institutions also have asserted an academicfreedom privilege to protect peer-review information fromdisclosure. We will treat this matter in greater detail inSection Six.

Although academic freedom has been discussed as a con-stitutional right, the legal boundaries of academic freedomalso are shaped by the contract of employment; facultymembers possess whatever academic freedom is guaranteedunder their contracts (Kaplin and Lee 1995). Courts, howev-er, will uphold academic freedom as a constitutional rightwhen the government attempts to control the content of theuniversity or faculty member's speech. Therefore, the facul-ty member's rights against the institution are defined primari-ly through contract law. The institution and faculty mem-ber's rights against the government are defined primarilythrough constitutional law. And because faculty members atpublic institutionOare state employees, they, too, have FirstAmendment rights that must be protected by their institu-tions.

As discussed previously, many institutions incorporate the1940 Statement of Principles in the faculty contract, and thisstatement is considered the most important policy statementon academic freedom. Even if the statement is not explicitlyincorporated into the contract, courts have referred to thestatement as evidence of academic custom and practice.Institutions should determine whether, or to what extent,they wish to incorpmate the statement into their contracts.Any intent to exclude this document from the contractshould be explicitly and unambiguously indicated.

The 1940 Statement of Principles on Academic Freedom

60

and Tenure states that during the probationary period ateacher should have the same level of academic freedom asall other faculty members (AAUP 1990). Specifically, thestatement defines academic freedom as the freedom toresearch and to publish the results of the research; thefreedom to discuss the faculty member's subject in the class-room (but controversial matter should be relevant to thesubject); and the freedom to speak or write freely as acitizen.

Individual faculty members and institutions haveacademic freedom rights, and these rights sometimes mayconflict. Faculty members who ask courts to adjudicateclaims that their institutions have violated their academicfreedom may find that the institutions counter by assertingthat any judicial resolution of these claims amounts to stateintervention in institutional affairs, thereby violating the insti-tutions academic freedom rights (Rabban 1993). All ofthese cases, therefore, illustrate how courts balance theseconflicting rights.

The results of these cases usually depend on the type ofspeech involved. The Outcome of a case, for example. maydepend on whether the speech is exercised in the classroomor in the faculty member's private activities. A faculty mem-ber may speak freely almt matters of public concern, butwhat if the speech negatively affects the legitimate interestsof the institution? The remainder of this section addressesthese issues in greater detail.

Academic freedom in the classroomInstitutions have the greatest amount of discretion concern-ing what occurs in the classroom, course content, and peda-gogy, and courts are extremely reluctant to get involved inthose matters (Poch 1993). In addition, institutional discre-tion to make curricular decisions, hire employees on the"basis of their philosophical bent," eliminate or reduce pm-grams, and elevate classmom performance has been protect-ed on the basis of academic freedom (Metzger 19931), pp.7-8).

In Lovelace vs. Southeastern Massachusetts University(1986), discussed previously, the faculty member allegedthat he was not whired because he advocated strictacademic standards, and he refused to lower grading stan-dards in his courses following several requests from admin-

The 1940Statement ofPrinciples onAcademicFreedom andTenure statesthat during theprobationaryperiod ateacher shouldhave the samelevel ofacademicfreedom as allother facultymembers.

Tennre, Promotion, an(l Reappointmentt)

61

istrators that he do so. Although the court assumed thatLovelace's refusal to lower grading standards was a motivat-ing factor in the decision not to reappoint him, the courtheld that a professor's grading policy was not unconditional-ly protected by the Constitution. To hold that it was, thecourt indicated, would constrict the university in definingand performing its educational mission.

Therefore, it appears that institutions have an academicfreedom interest in determining what should be taught, howit should be taught, and when it should be taught. Onereason for courts' reluctance to interfere in these matters hasto do with institutions' right to protect students from certaintypes of speech. For example, institutions may protect stu-dents from profanity and obscenity in the classroom.Another reason lies with judges' beliefs that they do nothave the requisite professional expertise to substitute theirjudgments for those of administrators, who are professional-ly trained to make such judgments, and who have beenpublicly entrusted with the responsibility of making thesetypes of decisions.

There are limits to institutions' ability to punish facultymembers for the content of their speech. Courts will notuphold negative employment decisions that were motivatedby the faculty member's exercise of First Amendment rights.Some speech, though arguably offensive, is protected andcannot be censored easily. In Dube vs. State University ofNew York (1990), the court determined that a faculty mem-ber of African studies raised legitimate concerns when heclaimed he was denied promotion and tenure for teaching acourse in which he claimed that Nazism, Apartheid, andZionism were three forms of racism. The court determinedthat his beliefs were protected by the First Amendment, anda jury shoukl decide whether his dismissal was based on theexercise of protected rights.

As illustrated in Dube, some speech, though offensive,may be protected by the First Amendment. Institutions maynot punish a faculty member for exercising protectedspeech. even if the speech is racist, disruptive, or otherwiseviolates institutional values. In Levin vs. HarIeston (1991),for example, a tenured professor in the philosophy depart-ment at City College publicly stated that African-Americanswere less intelligent than whites and that African-Americanscould only succeed when academic standards were lowered.

02

As a result of his controversial words, angry students dis-rupted his classes, but the administration did not take actionagainst the disrupting students. After setting up a committeeto determine whether Levin's speech went beyond academicfreedom and became "conduct unbecoming a faculty mem-ber," the administration decided to allow students who feltuncomfortable in Levin's course to switch to a parallel sec-tion. Between one-third and one-half of the students whonormally would have registered for Levin's course opted forthe parallel section during the next few semesters. Levinsued City College and its officials because he believed thismove (the parallel section) singled him out on ideological,not pedagogical, grounds in violation of his civil rights andthe First and 14th amendments.

The federal district court held that City College officialshad sought to punish Levin for his speech. The court pro-hibited the college from taking any disciplinary actionagainst Levin or maintaining the parallel section. The courtalso ordered the administration to take reasonable steps toprevent the disruption of his classes. A federal appealscourt affirmed the lower court's decision on all mattersexcept that the college had to take reasonable steps to pre-vent the disruption of Levin's classes (Levin vs. Harleston1992).

In addition to a faculty member's beliefs, a professor'sevaluation of students' work also may be protected by theFirst Amendment. In Parate vs. Isibor (1989), for example.the appeals court reversed a lower court's dismissal of afaculty member's claim that his First Amendment rights wereviolated. Parate, an untenured associate professor in thecivil engineering department at Tennessee State University,established a numerical grading scale for a course he taught.Two students complained to Parate about their final grade,and Parate agreed to change one student's grade but not theother's.

The clean of the School of Engineering and Thchnologyinstructed Parate to change his grading scale so both stu-dents would receive a higher grade. Parate initially refused.but after constant pressure from the dean and departmenthead he finally agreed. For the next couple of years, thedean and department head challenged Parate's grading inother courses, criticized his teaching methods, gave himunfavorable performance evaluatk)ns, refused to reimburse

Tenure. Promotion. and Reappointment i

him for authorized travel expenses, and impeded hisresearch efforts. In March 1985, Parate was informed by thepresident that his contract would not be renewed for afourth year. Parate attempted reconciliation with the dean.who informed him that his contract would be renewed but"you must obey and never disobey your dean" (p. 825).

In Septenther 1985. a few students challenged the gradesthey received in Parate's classes, disrupted his classes, andthreatened to complain to the dean. A couple of days later,the dean and department head appeared in Parate's classunannounced, disrupted his class, and berated him in frontof his students. At one point, they ordered him to "stop theroll" and complete a problem on the blackboard withoutaddressing the students. The dean later relieved Parate ofhis teaching duties. Parate sued, alleging, among otherissues, violations of his academic freedom under the FirstAmendment.

Although the court emphasized the importance of judicialdeference in academic matters, it held that the assignment ofa letter grade could be considered a communicative act enti-tled to constitutional protection, and an institution thatforces a faculty member to change a previously assignedgrade may violate the First Amendment. The court indicatedthat administrators had the option of changing such a gradethrough administrative channels. The behavior of theadministrators in this case also may have influenced thecourt's decision.

Faculty members also have the right to engage in politicalactivities, anu ilh:y must prove that a negative reappoint-ment, promotion, or tenure decision was motivated by thefaculty member's speech. In Cooper t's. Ross (1979), anuntenured assistant professor of history at the I Iniversity ofArkansas was informed that he would not be reappointedafter he became a member of the Communist Party and afterhe informed his classes that he taught from a Marxist pointof view. Although the university provided other reasons forthe nonreappointment, the court believed that the decisionwas substantially motivated by the fact that the faculty mem-ber was a Communist, and this type of association was pro-tected by the First Amendment. The university failed toshow that the decision would have been the same irrespec-tive of Cooper's exercise of his constitutional rights.

64

Academic freedom in institutional or public affairsWhen the faculty member's speech relates to public or insti-tutional matters or concerns, courts have been less willing todefer to the institution's judgment. The Supreme Court inPickering vs. Board of Education (1968) held that teachershave a First Amendment right to comment on matters ofpublic concern, and the public institution must prcve that ithas compelling interest in prohibiting such speech. Thecourt held that public-school teachers have a FirstAmendment right to speak out on matters of public interestin connection with the operations of the public schools inwhich they work, and only a legitimate state interest woukljustify any prohibition of the teacher's speech.

Metzger argued that Pickering was both a victory foracademic freedom and a loss (19931)). On one hand,Pickering held that faculty members' constitutional rightsmust be protected. On the other hand, it also required thatfaculty members prove that their speech is a matter of publicconcern, and institutions would prevail if they are able toshow that the faculty members words impaired legitimateinterests such as the harmonious work relationships neces-'sary to promote their educational missions, or they are dis-ruptive (p. 7).

The issue for many courts, therefore, is whether the facul-ty member's speech or expression relates to a public matter,and speech classified as "public concern" is strongly protect-ed. Certain racist speech may not be regarded as a matter oflegitimate public concern. For example, in Omlor vs.Cleveland State University (1989), discussed previously, thefaculty member allegedly made a remark that a certain per-son was "good guy, for a Jew. I like about 40 percent of theJewish people I meet." The court held that Omlor could notclaim these remarks were constitutionally protected becausethe words were not "a matter of legitimate public concern,"and even if the president considered his remark in his deci-sion not to recommend tenure, the decision was proper.

The faculty member's political activities are a legitimatematter of public concern and may not be used to deny reap-pointment, promotion, or tenure. In Goss vs. San JacintoJunior College (1979), a faculty member claimed her contractwas not renewed because of her political and union activi-ties, which were protected by the First Amendment. The

Tenure, Promotion. and Reappointment 65

S t

college claimed that Goss was not rehired because of declin-ing enrollments and poor work. The court held that therewas ample evidence that Goss had not been rehired becauseof her political and union activities. Institutions that proveevidence that the decision was made on legitimate academicgrounds (such as inadequate scholarship or poor teaching),however, likely will prevail in these types of cases.

As Goss illustrated, courts are suspicious of institutionalactions that appear to coincide with the faculty member'sexercise of protected speech. In Roos vs. Smith (1993), anuntenured faculty member of education at Jackson StateUniversity sued after not being reappointed for what sheclaimed was a violation of her First Amendment rights.Roos alleged that her contract was not renewed after shetestified on behalf of another white faculty member in a TitleVII race discrimination suit against the university (seeSection Four). She testified at that lawsuit, in essence, thatwhites were unwelcome at Jackson State University. Shereceived notice of nonrenewal less than a month later.

The court held that as an untenured faculty member Rooshad no entitlement to continued employment at the universi-ty, and so her contract need not have been renewed for anyreason or no reason at all unless the reason for that actioninfringed upon her constitutionally protected rights. Hertestimony in the discrimination case was protected by theFirst Amendment. Although the university claimed that toreceive accreditation of one of the school of education'sdoctoral programs it needed to release Roos and hire a pro-fessor with appropriate qualifications, the court determinedthat the university's reasons were a pretext for illegallyinfringing upon her First Amendment rights.

Faculty members at public institutions have a FirstAmendment right to express themselves on matters of publicconcern. Institutions, however, may restrict speech thatinterferes with its educational objectives. This appears sim-ple: in reality, balancing the right to speak on matters ofpublic concern with the institutions right to conduct theirmissions is difficult. Furthermore, a recent Supreme Courtcase implied that in disciplining faculty members for activi-ties that are alleged to implicate First Amendment interests,institutions may have to conduct reasonable investigations,and faculty members may not be disciplined until the institu-

66

S I

tions have substantiated the allegations (see Waters vs.Churchill 1994).

Academic freedom in private lifeFaculty members enjoy the most protection in matters relat-ing to their private lives. Courts are reluctant to uphoklinstitutional restriction of faculty members speech in mattersinvolving their private lives. Faculty members do not losetheir rights as private citizens simply because they work inpublic institutions. They may comment on public issues,associate with whom they please, or otherwise expressthemselves as private citizens. Courts have hekl for facultymembers who chose not to abide by an institution's groom-ing regulations (see Hander vs. San Jacinto Junior College1975); faculty members who held outside jobs (see Tristervs. University qf Mississippi 1969): and faculty members whospoke on controversial matters (see Jeffries vs. Ikirleston1993'; Levin vs. Harleston 1991).

This right, however, is not absolute. The 19.10 Statementof Principles, for example, requires that faculty membersshould "at all times be accurate, slumld exercise appropriaterestraint, should show respect for the opinions or othecs.and should make every effort to indicate that Ihe or she! isnot an institutional [spokesperson!" (AAUP 1990). insti-tutions, therefore. may be able to frame a legal argumentthat would allow them to restrict the private activities offaculty members if they prove that these activities interferewith the faculty members' teaching or other legitimate insti-tutional interests (Kaplin and Lee 1995).

Eastern State University ScenarioYour claim to tenure is based upon statements made in thefaculty handbook, which is part of your omtract. Es-sentially, the handbook indicates that after six years a facultymemher either has tenure or is to he dismissed. The univer-

'Me Jeffries case has heen long and contro\ ersial. When the Co) Collegeor New York renuived Pnifessor Jellnes Irom ;1 depaumental r haumanshipfor his controversial speech. the o tuns ruled in his LINO!" !Act. theSupreme Court %acated 1.he lower c(itiits' rulings and sent the (am: hit k It,

reccmsidered. The appeals ciiiirt later hekl that the Institution did not%lid:He the molesmir's First Amendment tights lie( ause ii as incitnated lc\a reasonahle piedu tu in ol the putlessoi s disniptic in ()I the institution siperat ions.

Tenum Promotion. and Realpoinlinent

68

sity also incorporated into its contracts the 1940 Statement ofPrinciples, which states that any full-time faculty memberhas tenure after seven years (see Section Two).

You have been employed full time for seven years.Courts, however, are extremely reluctant to determine thatfaculty members have tenure when there are explicit poli-cies governing how tenure is acquired. The handbookstates that tenure is not automatic and that the board oftrustees must confer tenure. It is unlikely that you will pre-vail in this matter because the board has not approvedtenure. Furthermore, your constitutional claims to dueprocess will not be vindicated if a court determines that youdo not have tenure or at least a "legitimate claim to contin-ued employment." But even if a court believed your claimsare valid, the Constitution entitles you to due process. notcontinuous employment. Eastern State llniversity need onlyprovide you with certain procedural rights, including a rightto an impartial hearing, which many institutions provide asmatter of course.

Your claims that the negative decision was motivated byyour criticisms of the university may be valid if you havesome evidence that this, in fact, is true. Was the decision todeny you tenure nmde soon after your criticisms? Is thereother evidence that the institution was motivated by thesecriticisms? If so, your First Amendment rights are at stakebecause institutions may not punish faculty members forspeaking on matters of public concern, and your speechwould certainly qualify as one of "public concern." Also,the university has contracted with youlo pnivide youacademic freedom rights (the l940 Statement of Principles).Therefore. your public criticisms about institutional mattersnot only are protected by the First Amendment but also byyour contract. The institution, however, still may be able toprove that its decision was not motivated by your speechbut instead was based upon legitimate academic grounds(inadequate teaching and research, lc it example). But if youprove some evidence that Eastern State I niversity's reasonsfor denying you tenure were a pretext. then you have avalid claim.

SummaryThe Ginstitution protects the property interests of facultymembers in public institutions. Property interests may not

8 3

be infringed on before institutions provide faculty memberswith due process, including adequate notice and a hearing.Untenured faculty members, however, do not have the rightto due process after their contracts have expired unless thecontract of employment or state law provides them with alegitimate expectation of continued employment. Courtsusually are unwilling to find that faculty members haveacquired tenure through informal means, especially if thereare written and explicit policies governing how tenure isacquired.

All faculty members in public institutk;;Is are entitled todue process if their liberty interests are compromised.Liberty interests arise when institutions make charges orallegations against faculty members that may damage theirreputations or impose a "stigma or other disability" prevern-ing them from obtaining other employment. In negativereappointment, promotion, or tenure decisions, liberty inter-ests are difficult to prove because the reasons for the denialare rarely made public a required condition for prevailingin such a lawsuit.

Faculty members' academic freedom also is protected.But courts are reluctant to become involved in strictacademic matters, such as pedagogy, grading, and courseofferings, unless the institutions' decisions are intended topunish faculty members for their speech. Courts willbecome involved in negative employment decisions that aremotivated by the faculty members' exercise of their FirstAmendment rights. These rights include the freedom tocomment on matters of public or institutional ccmcern. thefreedom to speak and express oneself even if suchspeech is considered offensive and the freedom toengage in certain activities such as testifying in court casesor engaging in political or union activities.

While these First Amendment cases involve public institu-tions. and constiwtional rights do not apply at private col-leges and universities, all administrators should pmvidethese rights because they ensure fairness and supportacademic values, academic freedom rights, especially, pri-marily are defined by the contract of employment. Courtsreviewing such contract claims against private institutionsmay well base thdr decisions on reasoning established inconstitutional cases.

ltre. Reap/10/111)710d

EMPLOYMENT DISCRIMINATION

Consider these scenarios:Professor Y, an African-American, male faculty memberin the social science department of Private University,has been denied tenure. The university makes thefollowing claims: Professor Y's scholarship is weak(he has very few publications); his research interestsare inconsistent with the goal of the department; andcolleagues and students have claimed that he is "hardto get along with." Professor Y makes the followingclaims: lie has sufficient publications; he has heardsome of his colleagues make "racist" remarks againsthim; he is the only African-American in his departmentand no African-American has ever been tenured in hisdepartment; and white professors have been tenuredwith fewer publications. The department and universi-ty tenure committees voted in his favor by a slightmargin, but the dean and the academic vice presidentrecommended against tenure.

Professor X. a white, female faculty member in theSchool of Education at Public University, has beendenied promotion to full prokssor. Prokssor X haspublished numerous articles and one book based onher dissertation. The university claimed she wasdenied promotion because she had not published asecond book. All full professors had published at leasttwo books (although some do not have as many arti-cles as Professor X). Professor X makes the followingclaims: She was informed by her department chair thatshe need not publish a second book; she wasinformed by her chair and several colleagues that hernumerous articles counted for "at least two books,"since it may be more difficult for women to developthe informal networks and professional and personalrelationships crucial for the publicaticm of any book,the two-hook requirement "in (greet bars the vastmajority of women from full professorships." Whilemore than half of the School of Education is composedof women faculty members, there are no female lullpn)fessors.

What legal bases do Professors Y and X have fortheir claims of discrimination? What would a court

Tenure, Promotion, and Rcylppointmen1 71

decide? Assuming that the professors initiate litigationand win, what should be the remedy?

The reappointment, promotion, and tenure process canbe conducive to illegal discrimination. The criteria usedoften are vaguely defined and subjectively applied, and fac-ulty members subjected to negative employment decisionsusually are given very few reasons, except perhaps that theirteaching, scholarship, or service was generally inadequate.Furthermore, these decisions often are made in closed meet-ings, and evaluators both inside and outside the institutionare expected to keep their decisions confidential to encour-age candor (Lalloue and Lee 1987; Leap 1993).

The primary difficulty in discrimination cases for facultymembers is that reappointment, promotion, and tenure deci-sions almost always depend upon subjective attributes: cre-ativity. rapport with colleagues and students, teaching ability,and many other intangible qualities that are difficult to mea-sure (Leap 1993). Courts often have had difficulty determin-ing whether inadequate performance or illegal discriminationcaused the negative decision (Lalloue and Lee 1987), andthey usually are unwilling to second-guess the appropriate-ness of Ole decision. In the majority of cases, courts willreview the promotion and tenure procedures but not thesubstance of decisions, finding the latter within the discretionof the academic professionals (1Iendrickson and Lee 1983).

Given its potential, there actually are very few reportedcases of flagrant incidents of gender or race discrimination.There is, however, evidence of an antiminority andantiwoman sentiment in academia (Leap 1993). Women andfaculty of color are seriously underrepresented anumg thetenured faculty ranks. In 1992, for example, only 61African-American professors held endowed chairs in collegesand universities, and one-filth of these professorships were',wated at the t niversity of North Carolina at Chapel I fill(Leap 1993). Furthernane, wonlen and faculty of cokw oftenhave felt that they were never completely accepted in acade-mia: 'Hwy often were n()t sought for collalx wation (n)resealoch projects or curricular matters; they often wet eexcluded from informal department communications andprofessional networking: and their research. unique teachingmethods, and service to the conimunity were not alwa;srewarded (Leap 1993):

'72

8 t;

An increasing number of studies and literature reviewshave indicated that women and faculty of color experiencemany challenges in academia. These works have empha-sized the barriers to access and advancement (Johnsrud andDes Jarlais 1994; Menges and Exum 1983; Moody 1988;Reyes and Ha Icon 1991); strategies for recruitment andretentkm (Blackwell 1988; Mickelson and Oliver 1991); jobsatisfactign (Aguirre, Hernandez, and Martinez 1995); social-ization (Pollard 1990; Tierney and Rhoads 1993): institutionalracism (Anderson 1988; Reyes and Ha Icon 1988); the char-acter and structure of the academic profession as hinderingtheir success (E:..um et al. 1984); and the differences in theexperiences of faculty of color and white faculty (Johnsrud1993). The general theme in these studies is that womenand faculty of color face many challenges, and to be pro-moted and tenured they need more professional and per-sonal support than they are receiving.

Because of serious underrepresentatkm; the barriersfaced; and the nature of the reappointment, promotion, andtenure process, women and faculty of color increasingly arealleging illegal discrimination as the basis for negativeemployment decisions. Most faculty members alleging dis-crimination have lost their cases because judges generallyhave been unwilling to overturn the decisions made. Butrecent amendments to Title VII of the Civil Rights Act of1964. which prohibits race and gender discrimination, mayresult in more victories for faculty members victimized bydiscrimination. Title VII now allows juries (as well asjudges) to determine whether discrimination has occurred.Lee pointed out that thi., change may have led to a numberof recent victories in discrimination cases probably becausejuries are less likely than judges to defer to academic exper-tise (1995). Understanding the issues involved in these cas-

, es is important because of the increase in this kind oflitigation, the recent changes to Title VII, and the enorithalsimpact of these cases on every(me involved.

The Nature of Employment-Discrimination LitigationFaculty members in einpl()yment-discriminatim cases aremore likely to prevail on procedural or jurisdictional issuesthan on the merits (Lalloue and Lee 1987). The most com-mon case involves single. white females skiing predominant-ly white institutkms, hut very few of these w(mien have

Facultymembers inemployment-discriminationcases are morelikely to prevailon proceduralorjurisdictionalissues than onthe merits.

Tenure, PmnMion, am1 Reappointnwnt 73

prevailed. Class-action suits brought by women have beenmore successful as are lawsuits by white faculty membersagainst historically black institutions. African-Americans andother faculty of color almost always have lost thei cases(Lalloue and Lee 1987)*.

Courts must necessarily examine the criteria actually usedto determine whether illegal discrimination has occurred.and so they are less likely to automatically defer to academicexpertise than in other cases (Lee 1985). Despite this, courtsare reluctant to interfere in the internal affairs of collegesand universitiest. Many courts have held that if the profes-sional decision has an "adequate" factual basis for the con-clusions reached, they will not substitute their judgments forthe views of the relevant professionals (Rabban 1993).

Courts have even upheld denials of reappointment, promo-tion, or tenure to those individuals whose research interestsor temperanlents do not fit in with other faculty members(Hendrickson and Lee 1983).

Courts generally have upheld academic decisions inwhich the process has been lengthy or has more than onelevel of review, even it' institutions have failed to follow theirown procedures (Lee 1985). hey will rarely inquire intothe accuracy or appropriateness of the criteria used to evalu-ate faculty members (Lalloue and Lee 1987). Where courtshave evaluated the substance of decisions to determinewhether discrimination has occurred they have focused onfactors that are not unique to academia, such as the timingof the decision and quantitative or comparativc data(Rabban 1993).

When looking into the substance of a decision. courtsbecome suspicious of obviously weak, implausible, ambigu-ous, and poorly substantiated reasons. Courts also maybecome suspicious when a negative decision occurs despitethe unanimous recommendation of faculty committees(Rabban 1993). In the few cases in which faculty members

'The study conducted by Lallotic and Lee (1987) involved cases that wereresohed on either procedural or substantive issues. This information doesmit include cases that were settled (an of court nor does it include those(ases that were !I:solved ithin the institution.

him recent kgistation pelt-114(111g employment discrimination cases to inriesinav result in more decisions on the merits. judges are reluctant to interferein these decisions, but furies an not as likely to defer to acakInic expertisein these !natters.

74

ha ve prevailed, the peer-review decision usually was posi-tive but was overturned at higher administrative levels(Hendrickson and Lee 1983).

Consequences of Employment-Discrlinination LitigationEmployment-discrimination cases are extremely complexand require a great amoent of resources. The trials tend tobe lengthy, sometimes covering weeks and producing thou-sands of pages of transcripts (Lee 1985). The evidence pre-sented in these cases has included the deliberations ofpromotion and tenure committees and testimony fromadministrators (chairpersons, deans, vice presidents, andpresidents), trustees, and outside evaluators. Faculty mem-bers who have been tenured or promoted may have theirqualifications and abilities scrutinized publicly, as suing fac-ulty members may need to prove that they were as able asthose who did attain tenure (see chronicle qt. HigherEducation, Feb. 3, 1995). Institutions often have beenrequired to present exhaustive evidence to establish that thedecision and procedures were fair. Even if the institutionprevails in the litigation, as often has been me case, thetime, money, and good will lost in the process takes its tollon everyone (Lee 1985). The resources expended in pre-venting lawsuits also is great; continuously adding procedur-al or documentary requirements for decision-making can hecostly (Lalloue and Lee 1987).

These cases also may have political and emotional conse-quences as well. For colleges and universities, these law-suits provide a precedent (and perhaps incentive) for otherfaculty members. Furthermore, the institutions also mayhave to deal with negative media exposure, student protests(if the teacher is popular), charges of bias, and faculty fac-tiom (Leap 1993)

For administrau ws. there can be personal consequences.They face the possibility of being nanwd codefendants inemployment-discrimination cases. The department chair isparticularly vulnerable as he or she may become the primarydefendant if the decision at the department level is negative(Lalloue and Lee 1987). Chairs and ()tiler administratorsalso may have difficulty in getting their instituti(ms to assistthem financially in defending the lawsuit, and some adminis-trators receive little moral support (Lalloue and Lee 1987).

The faculty member also suffers consequences. In addi-

Tenure. Pronudion, awl Realpointmeul 75

tion to feeling hurt, a negative tenure decision may result injob loss. Since a negative decision typically is viewed by theacademic community as a reflection of the individual's com-petence. the faculty member often has difficulty obtainingemployment elsewhere*. Also, the faculty member mayhave his or her performance publicly exposed to criticismduring the litigation. Since no one is perfect in all threecategoriesteaching, service, and scholarshipthe facultymember may doubt his or her own abilities and the reasonsfor filing the lawsuit. Furthermore, the financial and politi-cal resources needed for these lengthy litigations also impos-es a heavy burden on the faculty member (Lalloue and Lee1987).

In their discussion of Lieberman vs. Gant (1979). Scott vs.t 'niversity ql Delaware( 1978), and other cases. Lalloue andLee excellently illustrated the impact of employment-discrim-ination litigation on evervone involved. Lieberman. a gen-der-discrimination case against the University of Connecticut,was long and complex, producing a transcript of nearly10,000 pages and almost 400 exhibits and consuming 52days of court time (the trial lasted more than two years).The 18 defendants, numerous legal claims, large number ofwitnesses, and the protracted illness of Lieberman's attorneyproduced an extremely lengthy litigation that required sub-stantial human and financial resources fr<m) Lieberman andthe University of Connecticut. Lieherman's personal conse-quences were severe. She not only lost the case but wasfinancially ruined, forced to file bankruptcy to avoid legal-fee claims, lost her health and profession. and could haveI()st her marriage.

The impact on the faculty member in Scott, a race-dis-crimination case, also was great. This case challenged thePh.D. requirement and the decentralized decision-makingprocess as having a discriminatory impact upon African-American faculty members. The personal toll on Scott wasextremely severe. Not only did he lose his case against thel'niversity of Delaware, but he died of a heart attack twodays before his attorney argued his aprwal. La Notw and Lee

'This coukl have lwen one of the reasons for the suprenw Court decision inIPlard ry' Regents vs ROI 119- 2). 1t Ali. or more accurately his attorney,failed to slum the likely efTot of a negatwe employment do. ISK m on hispuitessional reputation I lad this been pnwed. 14,th wc mid have implicateda "liberty interest.- whk h entitled him to due pnwess protection.

76

indicated that Scott's loss at the trial level, the necessity ofleaving the university, his difficulty in obtaining employmentin a related field, and the loss of his second position afterone year because of layoffs probably combined to producehis fatal heart attack, especially since he had a history ofhea7t disease.

The Legal Basis for Employment-Discrimination LawsuitsFaculty members are protected from illegal discrimination bya number of state and federal laws. Federal law hasassumed the greatest importance in discrimination cases(Kap lin and Lee 1995). There are nine major federalemployment-discrimination laws and one major executiveorder, applicable to colleges and universities, each with itsown comprehensive set of regulations and guidelines andwhich provide more protectkm than the Constitutkm andmany state laws (Kap lin and Lee 1995).

Race discrimination in promcuion, tenure, and reappc)int-ment is covered by Title VII of the Civil Rights Act of 1964and Section 1981 of the Civil Rights Act of 1866. Genderdiscrimination is covered by Title VII and Title IX of theEducation Amendments of 1972. Age discrimination is cov-ered, in part, by the Age Discrimination in Employment Actof 1967. Discrimination against people with disabilities iscovered by the Americans with Disabilities Act of 1990 andthe Rehabilitation Act of 1973. Discrimination on the basisof religion is covered lw itle VII. Discrimination on thebasis of national origin is covered by Title VII. Dis-crimination based upon national origin is covered by TitleVII (Kap lin and Lee 1995; Lalloue and Lee 1987).

Constitutional considerationsFaculty members at public institutions may be protectedfrom employment discriminatkm by the due p R wess andequal-protection clauses- of the 1,1th Amendment. Theselawsuits, however, rarely are successful since the SupremeCourt ruled in Witsbing,ton tc. naris (1976) that empk)yeesmust prme intentional discriminatkm to prevail on constitu-tlimal gmunds. Po wing intentkmal discriinination isextremely difficult given the confidential nature of the pro-motion and tenure pnwess. I nder federal civil-riglus laws,employees may prove discrimination by showing that insti-tutkalal policies have a negative and "dispn)portk mate

Terrare, Pronfidion. and M'appointment 77

impact" on their particular class of employees (African-Americans or women, for example). Disproportionateimpact is not a sufficient ground for proving discriminationunder the Constitution.

The Constitution plays a small role in employment-dis-crimination cases. This is partly the result of a strict stan-dard of proof. But the federal statutes have extendedconstitutional protection against employment discrimination.Furthermore, the 14th Amendment case does not give insti-tutions the kind of guidance provided by detailed rules andregulations of federal law, and faculty members do not havethe broad range of remedies (Kap lin 1985). Furthermore,constitutional protection only applies to faculty members atpublic institutions; faculty members at private colleges anduniversities have no recourse under the Constitution even ifthey are able to prove intentional discrimination.

The Constitution, howevr, assumes more importance inareas not covered by the federal civil-rights laws (Kap lin andLee 1995). For example, discrimination against peopleyounger than 40 years, or homosexuals, is not covered bythe federal civil-rights laws (Kap lin and Lee 1995). If thereare no local or state laws prohibiting these types of discrimi-nation, the Constitution may be the only recourse for indi-viduals so victimized by public nstitutions. In thesesituations, however, the alleged victims of discrimination willhave to prove that the discrimination was intewional.

Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) isthe most important legislation in employment discriminationand warrants the most extensive discussion in this report.Title VII is the most frequently used legislation in employ-ment-discrimination cases (Hendrickson and Lee 1983;Kap lin and Lee 1995; Lee 1995). Congress was concernedwith discrimination in higher education (especially that ofwomen) when it amended Title VII to include private andpublic institutions (Lalloue and Lee 1987). Title VII con-cepts also parallel those under other federal civil-rights laws(Kap lin 1985),

Title VII makes it illegal fin an institution to discriminateagainst faculty members on the b;sis of their race, gender,national origin, or religion, unless it is a necessary and"bona fide occupati(mal qulc. fication" (Kap lin and Lee 1995,

78 9''

p. 199). This exception forms the legal basis for the practiceof religious institutions of hiring faculty tnembers of particu-lar religious denonlinatkms.

To bring an action (sue) under Title VII, faculty membersmust establish a prima jade, or "on its face,- claim: thismeans there is enough evidence to convince a court thatdiscrimination may have occurred. A prima facie showinginvolves four steps. First, the faculty ...ember must showthat he or she was a member of the protected class Title VIIcovers. This is not difficult since anyone can he the victimof race. gender, religious, or national-origin discrimination.Second, the faculty member must show that he or shesought, and had the appropriate qualifications fbr,reappointment, promotion, and tenure that he or she hadthe same qualifications as other successful candidates. Sincethese decisions are based on N.ague and subjective criteria,faculty members can show discrimination by proving thattheir qualifications compared favorably with other successfulcandidates in the department or that they received a favor-able recommendation by the peer-review committees orexternal evaluators (Leap 1993). Third, the faculty membermust show that he or she was not reappointed, promoted,or tenured. Finally, the faculty member must prove that theinstitution reappointed. promoted. or tenured, around thesame time, other faculty members possessing similar qualifi-cations.

In establishing a prima facie claim. laculty members willuse evidence indicating that they compared favorably withothers who were reappo )inted. promotion. or tenured. Thecriteria used in such c(miparisons include similarities inquantity and quality of puhlications: teaching abilities: andadministrative responsibilities and committee work. Thecomparative data. however, must he so comipelling as tolead a cmirt to believe that discrimination has occurredrather than an honest difference of opinion among profes-sionals qualified to make such judgments (Leap 1993).

Once the faculty member has established a prima facieclaim, the institution must articulate some "legitimate busi-ness reason- for denying reappointment. promotion. ortenure. I Nually, the institution attempts to slum. institutk malfinancial pro)blems. the eliminatk m or scaling down of allacalcmic program, tenure density, that the faculty memberdid not meet the appnyriate criteria (teaching, service, or

7innire. l'non) 'non. and M'all)( ointnunn

scholarship), or that the faculty member was incompatiblewith the department personally (he or she does not workwell with others) or in terms of his or her research or teach-ing specialty (Hendrickson and Lee 1983; Lalloue and Lee1987; Leap 1993).

The faculty member then has the burden of proving thatthe "legitimate business reason" articulated by the collegewas actually a pretext and that the actual motivation for thedecision was discriminatory. Faculty members can showpretext by attacking the institution's motive and substantiat-ing others or by showing statistical or comparative evidencethat indicates that discrimination was the motivating Factor inthe decision (Hendrickson 1991). If the faculty member candemonstrate to a court that the stated reasons for the nega-tive decision were not the actual reasons, then the courtmay infer that the institution illegally discriminated againstthe faculty member (Leap 1993).

On the other hand, if the institution can show that itsfaculty and administrators have used the stated criteria, fol-lowed their procedures, documented their reasons, andtreated similar faculty members in the same way that thesuing faculty member was treated, then it generally prevailsin Title VII cases (Lalloue and Lee 1987). In Bina r.s.Provicknice Cbllege(1994), a professor of Iraniin descentsued the college alleging that the college was motivated byethnic discrimination when it denied him a tenured teachingposition. The court was persuaded that Bina was not dis-criminated against because the committee minutes clearlyreflected objective appraisals of his qualifications.

Title VII claims first must be filed by the faculty memberwith the Equal Employment Opportunity Commission, orEEOC, within 180 days after the alleged discrimination hasoccurred. In states that have an approved dvil-nghtsagency, the faculty members may have up to 300 days to Filea Title VII complaint (Leap 1993). For reapoointment, pro-motio al, and tenure decisions, this means that the claimsmust be filed very shortly after the faculty member is noti-fied of the negative decision, even if the institution prmideshint ur het with a terminal year and an internal grievanceproceeding (Kaolin 1985). These time limitations apply toeach act of alleged discrimination.

The continffing dndrinc. however, allows thefaculty member to have an entire pattern of discrimination

SO

9,1

heard, even when the time limit for certain acts has expired.For example, in Sunshine vs. Long Island University (1994), acourt held that a faculty member's pre-1992 claims wereevidence of a continuing practice of discrimination againstfemale faculty members. For six years Sunshine had beendenied tenure by the academic vice president despite beingrecommended for tenure by the department, the dean, andthe tenure committees.

Faculty members also must exhaust their administrativeremedies. including filing a claim with the EEOC, beforeinitiating a 1 itle VII action in court. In Moche vs. CityUniversity qf Neu. lUrk ( 1992), the court dismissed a gender-discrimination case because Moche had not filed acomplaint with the EEOC or a qualified state agency nor didshe obtain a "right to sue" letter from the EEOC. The EEOCissues "right to sue" letters allowing complainants to seekimmediate legal recourse in court rather than waiting for theEEOC to complete its investigation.

Title VII also requires that the faculty members mitigatetheir damages. Faculty members may be required to seekand obtain other comparable empl()yment to recover nume-tary damages. In Ford vs. Nicks (1989), for example, thecourt determined that Middle Tennessee State Universitydiscriminated against Ford, a female faculty member in itseducation and library science department. on the basis ofgender. Ford was offered a position at a technical college70 miles away, which she turned down because the com-mute was too far, and she did not actively seek an academicposition after that. The court held that Title VII requiredthat the faculty member look fiw and accept empkiymentsubstantially equivalent to the job she lost. The court heldthat since she and her husband had looked nationally forpositions and the technical college was close enough for thecouple to have moved halfWay between two cities to accom-modate each other's wwk, immetaiv damages under TitleVII stopped accruing as of the date on wl licit she w(mldhave begun work at the technical college.

Categories of Title VII claimsTitle VII claims fall into two major categories: disparate treat-ment and dispanite impact. Faculty members allege dis-parate treatment when race, gender, or some other illegalmotive affected the negative decision: disparate impact cases

Tenure. Pronu,thm. arid Roillndlitnicilt 9

usually allege that reappc)intment. prt)motkin. and tenurepolicies. practices. or criteria have an unfair. discriminatt,ryimpact on a certain class of people (Leap 1993: Kap lin1985).

Disparate treatment. The elements ttf a dkparate-treatmentclahn were outlined by the Supreme Court in Me OwittellDouglas Corp. vs. Green( 19-3). l)isparate-treatment casesrequire proof that the discrimination was intentional.Because intentional discrimination is difficult to 110faculty members who hie such lawsuits rarely sll«.yed A

court will not necessarily find that discriminathm hasoccurred simply because a college ()I university faded tomake "careful. well-reasoned peNonnel deckions or failedto 1011ow prescribed procedures- (Leap l993. p. I ).

\\Omen and faculty of color nevertheless have pre\ ailed inthese cases when they have been able to prove that the\were held to higher standards of performance than whitemks or that they did not receive appropriate C-Jrcer cc 11n-seling and timely evaluation appraisals. while others, did In

some rare cases faculty members are al I pn e dire( II\that they were denied reappointment. prtinagion, andtenure because of collegial or administrator gender or l'atialdiscrimination

The difficulty in Title VII cases is not in establishing aprima facie claim but in pro% ing that the institution's statedreasons were a pretext for discriminatit in. In In(lanard niversitr 199(1) i female faculty membet atlarvard University's Graduate :school of Business

Administration twice was rejected for tenure. I )uring theinitial proceedings. Jackson requested that an indix Rita onher suboamnittee he removed for having :1 bias .1g.1111.twomen. Iler request was denied. but the subcommitteevoted in her favor, with the indic idual she claimed wasbiased voting for her but expressing reset-cations ah( nit hetw (wk. since (he yule ...a the laculic meeting was split. hetapptiintment was extended for three years. i)uring the setond proceedings, a slim majority nt the faculty oted hetla% or, but the dean dented her tenuic Jat kson alleged thatthe dean (in referring to alfirmatic e Wit k ckl fat 111.1( ii

the government or the public wanted %cc mien iii i lit it thic

blisinCss ,,Choui, they would ha\ e nnpnse qui ita,. het auswHarvard would not actually promote wi cmen. t mit

t-

held that although Jackson made a prima facie claim of dis-crimination, Harvard articulated a mmdiscriminatory reason(deficient scholarship), and Jackson did not prove that therev-,m was pretextual. The court was persuaded that thede, .n fact supported affirmative action and that theallegedly biased person actually voted in her favor.

A court reached a different conclusion in Kothin es.University qf Minnesota (1994). An appeals court found thatthe institution's stated reasons for not reappointing a femalefaculty member in the comparative literature departmentwere a pretext for discrimination. In 1988 the departmenthired Korbin as a lecturer after her position at another pro-gram was eliminated. Shortly after, the departmentapproved two new positions, a senior and a junior position.Korbin applied for the junior position and was one of the 15finalists, but the committee cluyie amaher candidate. Whenthe senior position coukl not be filled, the departmentreceived permission to hire another junior faculty member.The department chose a male candidate to fill the position,and Korbin then initiated a gender-discriminatitm suit.

The district coun'held in favor of the university. Theappeals own overturned the decision, determining that theuniversity's reasons were pretextual. This court found thatthe university's reasons changed over time. First it informedKorbin that the male candidate was hired because of hisexperience in critical theory and psychoanalysis, thenclaimed that he was more qualified than Korbin because herbackground in critical theory was too f(lcused on psycho-analysis. The university claimed that Korbin's expertise inpsychoanalysis was not one of the areas it was attempting tofill, yet the male candidate was assigned to the courses inpsychoanalysis and literature courses Korbin had devel-oped. So clearly the university vacillated in its reasoning.

When women or faculty (, color are treated differently,courts become suspicious.. In Kunda vs. Multlenbm Colle,r4e(1978). the court determined that a female faculty memberin the physical-education department was discriminatedagainst on the basis on her gender. Kunda was denied pro-motion and tenure and sued the college alleging that shewas treated differently than the males in her department.The college contended that she was no)t promoted andtenured because she did not have a master's degree. ButKunda was able to show that unlike the males in her depart-

When womenor faculty ofcolor aretreateddifferently,courts becomesuspicious.

Tel1111V, Pro InOtion. and ReappointMent

ment she was never counseled that a master's degree wasessential for tenure. The Kunda case is important for anumber of reasons, primarily because of the remedies thecourt granted*. This case also recognized the importance ofpeer review in promotion and tenure decisions the facul-ty-review committees had agreed that Kunda was qualified(Lalloue and Lee 1987). Courts, and especially juries, maybe convinced that discrimination has occurred when thefaculty member receives peer support at the departmental .

level and by external reviewers (Lee 1995). Kunda alsomade it clear that although courts will defer to the expertjudgments of college officials, institutions of higher educa-tion are not insulated from Title VII liability (Kap lin 1985).

Women or faculty of color who can prove that they wereheld to a higher standard than white males are likely to pre-vail. Sometimes, this is obvious. In Gutzwiller vs. Fenik

(1988), a female faculty member in the University ofCincinnati's classics department was denied promotion andtenure. At the time that Gutzwiller was hired, there were 12faculty members in the department, and the only woman inthe department had been denied tenure. The departmenthead, Fenik, had informed Gutzwiller that her book basedupon her dissertation was not enough and that she shouldpubhsh another hook independent of her dissertation. Nomale member of the department needed to publish a secondbook.

Gutzwiller asked the new department head for a leave inorder to publish her hook. but her request was denied. Herrequest for a reduced load (to which she was entitled afterfour years of service) was not granted until just before shewas to apply for promotion and tenure, which preventedany possibility of publishing her book. The court deter-mined that Gutzwiller had been discriminated againstbecause of gender. It based this decision upcm several find-ings: No male member of the department was required topublish a second book: she met or exceeded the number ofpublications of every tenured memher except the committeechair: the committee chair treated her unequally in the selec-tkm of outside evaluators (only two) or the reviewers thatshe selected were chosen, while men usually had all five of

'The court granted Kumla "conditional tentire-; in other words. she wouldattain tenure \\lien she ol)taincd her master's degree.

84

th1/4. selections chosen); the chair of the tenure committeesconsistently provided negative interpretations to.generallyfavorable evaluations of her scholarship; and the departmentchair consistently had opposed her, affirmative action, andwomen in tenured positions.

The Gutzwiller case not only provides an example ofobvious discrimination but also is an example of when indi-vidual administrators can be found guilty of violating a facul-ty member's civil rights. The court stated that the depart-ment and committee chairs acted "recklessly" and with "cal-lous disregard" for Gutzwiller's rights when they influencedthe decision to deny her tenure; they therefore could beheld liable for punitive damages under Section 1983, whichallows faculty members to sue public-school officials whohave violated their constitutional rights.

In Brown vs. Trustees of Boston University (1989), anappeals court also found that the institution's stated reasonsfor denying promotion and tenure to a female faculty mem-ber in the College of Liberal Arts were pretextual, and that awoman was held to a higher standard than males in herdepartment. Brown's application for promotion and tenurelisted a book on Jane Austen based upon her dissertation(which was published by I larvard University Press and nom-inated for an award), three book reviews, and a work inprogress about Oscar Wikle (for which she received aS16,000 Mellon grant). The department committee votedunanimously in favor of promotion and tenure, and thedean agreed after expressing reservations about her scholar-ship. The dean, however, suggested that a historian besolicited to review her work and that she he granted a three-year extension to finish her work on Wilde (this extensionwas permitted under the collective-bargaining agreementpnwided that the tenure committees and the candidate allagree).

The universitvwkle committee voted 9-2 to grant Brownpromotion and tenure. The assistant provost, the provost,and the president, expressing concern about the quality ofher book, recommended the three-year extension. All of thecommittees and Brown rejected the extension. An ad hoccommittee voted 2-1 in favor of promotion and tenure. Thepnwost, however, reo)mmended against tenure because the(A)nlinittee vote was not an unqualified endorsement. Thepre,,ident greed. Brown's Title VII lawsuit claimed that she

Pninu4i(in. a Hi M'aplaii,itinent

had been subjected to a higher standard than males in thedepartment because no external historian was sought forthem; other males had been granted tenure with smallerquantities of published works; the males also had booksbased upon their dissertations; no male candidate in theEnglish department had a second published book; some ofthe males granted tenure had not published any book; andtheir tenure reviews Nvere not as strong as hers. The trialcourt held in Brown's favor and ordered that she be reinstat-ed and tenured. The appeals court agreed and held that afaculty member's right to he free from discrimination pre-vents the university's tenure process from being insulatedfrom judicial review. The appeals court indicated that infer-ence of discrimination can he made by showing that theuniversity's stated reasons fOr denying promotion or tenurewere obviously weak or implausible or that the tenure stan-dards were unequally applied.

The actims of key administrators in these types of' casesalso is informative. In Brown. the court permitted the facul-ty member to include evidence of administrator bias. Forexample. Br()Wri inm xluced comments lw the presidentreferring to her department as a "damn matriarchy" despitethe small proportion of women in the department. InSunshine is. Long Island ( 'uiversitr( 1991), a female facultyii-wmher in the political-sLience department was deniedtenure from 1987 to 1992 by the academic vice presidentafter her department, the dean, and the Faculty PersonnelOrnimittee all endorsed her application. Sunshine had beeninformed in 1985 and 1986 that she woukl be granted tenureonce she obtained her Ph.D., which she did; then theacademic vice president infcirmed her that she would not betenured until she had additional publications. and Nyhen shepublished more articles he still rejected her application. In1992, 1 2 professors five males and seven females wererecommended lOr tenure by their departments and the facul-ty. All of the males except a Hispanic were granted tenure.and initially none of the women were. After a facultyprotest, one of the females was tenured. Tw o of the womeninvolved in the ponest, including Sunshine, were released.

During a meeting of the faculty, the academic vice presi-dent allegedly made krg)wingly hilse and defamat(wy state-ments about Sunshine's qualifications as a scluilarSunshine's lawsuit alleged that she had been the victim of

86

gender discrimination and that she was released in retalia-tion for her complaints about the treatment of women facul-ty. The court held that she had sufficient evidence tosustain an action for illegal discrimination because of thedepartment's weak record of granting tenure to women, andmales had been granted tenure despite fewer publicationsthan Sunshine. Sunshine also demonstrated enough evi .dence to sustain a retaliation claim. She was released aftershe filed an internal gfievance and was involved in the fac-ulty protest. The academic vice president's allegedly defam-atory remarks also helped to support the retaliation claim.

These examples all involve gender discrimination. Race-discrimination claims are much more difficult to show. InScott vs. Olive/NUJ, qf Delaware ( 1978), an African-Americanfaculty member in the sociology department sued the uni-versity alleging race discrimination when he was not reap-pointed for a second three-year term. The universitycontended that his teaching and scholarship were inade-quate. The thrust of Sc()tes argument regarding thedisparate-treatment claim was that white faculty membersgenerally were renewed for additional periods and thusafforded greater opportunity to qualify for tenure. The courtrejected his claim and determined that the decision of hisprofessional colleagues was based upon their belief thatScott was not interested in pursuing the kind of scholarship.research, and writing they believed important and that histeaching was not effective all legitimate reasons for notreappointing him.

Courts will find race discrimination in more obvious situa-tions. In (lark es. Claremont Univet.sit,' Center( 1992), theappeals court f(mnd that the university discriminated againstan African-American male faculty member in its educationdepartment. Clark's departmental review was positive, butthe two senior members (the former and current departmentchairmen who guided Clark thfimgh the tenure pr(wessvoted against him. The university tenure committee votedagainst tenure by a -1-1 vote. Clark appealed to the presi-dent. who investigated his racial-discrimination allegationsand f(mnd that at a depaninental meeting, a faculty memberwho voted against clark had said, -I's white f()Iks haverights, too."

The president, however. affirmed the committee's deci-sion because of what he claimed was Clark's insufficient

Torun,. Pmination. Reappuintmenl 87

iOz

publication record and negative student evaluations. Theuniversity appealed the trial court's decision in favor ofClark, and the appeals court upheld the verdict. Althougheach step of the review process purportedly resulted in adifferent review of Clark's application, the court stronglybelieved that the department's review was discriminatoryand it affected the subseqc,mt decisions especially sincenegative evaluations had to be submitted to the subsequentreviewers. The court also found that the chairperson misledClark concerning publication requirements and gave him adiscriminatory review; the faculty member making the"racial" remark wrote a negative letter to the tenure commit-tee: another faculty member's mention of Clark's race in atenure committee meeting was a subterfuge for discrimina-tion (the faculty member claimed he was reminding thetenure committee of its affirmative-action obligation);Claremont had never granted tenure to a person of color:external scholars had commented on the excellence ofClark's work and the groundbreaking nature of Clark's book;white professors were tenured with less substantial publish-ing records: and Claremont had changed its unwritten publi-cation standards to justify its denial of tenure to Clark. Thecourt also believed that the president's review ignored sub-stantial evidence of discrimination and was merely a rubberstamp of the tenure committee's decision.

Clark notwithstanding, racial-discrimination claims areextremely difficult to prove unless the faculty lember iswhite and the institution is historically black. For example,in Cmig, vs. Alabama State l'nitmity( 1978), the court deter-mined that the university had engaged in a pattern of dis-crimination against white professors. And in lanting Ls.Jackson Stale iversitv ( 1980), the court determined that awhite professor's discharge was motivated by his race. Theclaims by historically black institutions that African-Americanfacuhy members provide better role models than white pro-fessors have not been accepted by courts when the institu-tions use race-conscious employment decisions (Kap lin andLee 1995). Why lawsuits by white professors against histori-cally black institutions are more likely to succeed than law-suits by faculty of color against predominantly whiteinstitutions is a phenomenon that deserves more research.

Disparate impact. Disparate-impact claims are less com-

88

1 0 ,

mon in higher education (Kap lin and Lee 1995). The ele-ments of a disparate-impact claim were outlined by theSupreme Court in Griggs es. Duke Power Co. (1971), whichheld that Title VII prohibits those practices that exclude orotherwise discriminate against faculty members on the basisof race, sex, religion, or national origin and that are unrelat-ed to job performance or not justified by business necessity.Later, the Supreme Court ruled that a challenged practiceneed not be "essential" or "indispensable" to an employer'sinterest for the practice to pass judicial scrutiny. The CivilRights Act of 1991 reversed this later Supreme Court rulingand others which had limited the rights of persons filingcivil-rights lawsuits. Now, institutions Must show that thepractice is job-related and necessary.

The subjective nature of the promotion and tenureprocess makes it difficult for faculty members to prove dis-crimination. But the Supreme Court has permittedchallenges to subjective criteria. In Watson vs. hbrt WorthBank & Thust (1988), the Supreme Court determined thatemployees can attack subjective decision-making practicesunder the disparate-impact theory. This is importantbecause reappointment, promotion, and tenure decisionsoften are based upon subjective performance standards(Kaplin and Lee 1995).

In disparate-impact cases. faculty members often relyupon statistics to show that a particular criterion has a non-trivial disparity on their class of plaintiffs (statistics showingthat the Ph.D. requirements negatively impact the number offaculty of color who may attain tenure, for example).Institutions often argue in these cases that this evidence isunreliable. The use of statistics in disparate-impact cases isimportant, however, because it provides courts with indirectevidence of discrimination and allows them to avoid dealingwith the merits of a negative decision (Leap 1995).

Once the faculty member establishes the nontrivial dispar-ity. the institution must show there is a "business necessity"for the challenged criteria (Swan 1990, p. 555). In Griggc(1971), the Supreme Court held that the empk)yer may showthat a criterion having a disparate impact on a particularclass of people may be valid if there is a business necessity.The criterion would be illegal if it is unrelated to job perfor-mance. The faculty member then must show that the insti-tution's stated reasons were a pretext for illegal discrim-

Town', Promomm. and Reappointment 89

ination. It is at this stage in disparate-treatment and -impactcases that faculty members introduce comparative evidence(Leap 1993). As noted, most faculty members have lost theircases. A study published nine years ago indicated that onlyone in five faculty members win their cases' (Lalloue andLee 198).

Courts occasionally have asked colleges and universitiesto show that their required qualifications for promotion andtenure are job-related if the qualifications exclude a dispro-portionate number of women and persons of color (Lee1985). In Scott tw. Delaware (1978). Scott filed bothdisparate-treatment and -impact claims. His disparate-impactclaim involved a class-action suit alleging that the universi-tv's doctoral-degree criterion had a discriminatory impact onAfrican-American faculty members and was not justified bythe legitimate needs of the university, and that the decentral-ized and sub;-ctive decision-making process had the overalleffect of putti (1, African-American candidates at a disadvan-tage.

Although the court ackmmledged that the Ph.D. require-ment had a disproportionate impact on African-Americans,the court held that it was justified by the legitimate interestof the university in hiring and advancing faculty memberswho are likely to be successful in adding knowledge to theirdisciplines and effective in the teaching of graduatestudents. The court held that Scott failed to suggest an alter-native which would serve the interests of the university andhave a less adverse effect on African-Americans, nor didSc()It prove evidence that the decentralized and subjectivenature of the process discriminated against African-Americans. The court beheved that the lack of a criticalmass of African-American faculty had more to do with self-selection than discrimination, ricAing that all of the African-Americans on staff with a doctorate and three or more yearsof experience were tenured or near tenure. And no otherfaculty member. African-American or white, had ever heendenied a mid-term contract renewal or ever alleged racialdiscrimination.

The Scutt case is important because it was the most seri-ous attack on the Ph.D.. the "union card for admission to the

I ill's(' 114 it idkr Mk) )11,1(leidill 411 ,Ctlieiii(111... Cl/ t ,Pse, th.liLit tie% er littg.ited mt. 1 ieccut studies ini.hcattng %Nliether this still

is Ina. tikl.u.

academic profession," and the requirement of which doeshave a statistically negative impact on the number ofAfrican-Americans and other underrepresented groups in thefaculty ranks (Lalloue and Lee 1987, p. 116). Scott also hadasked that one of three new faculty hires at all levels of theuniversity be African-American until they made up 12.5 per-cent of the total faculty. The case, therefore, had the poten-tial to bring compulsory affirmative-action requirements toresearch universities.

Prevailing under a disparate-impact claim is extremelydifficult. In J. Cinpenteres. Board qf Regents. UnivoNity ofWisconsin (1984), an African-American male faculty memberin the Afro-American studies department at the university'sMilwaukee campus sued under the disparate-treatment and-impact theories. Because the department was new.Carpenter was required to perform more responsibilities,including curriculum and course development, and heserved as chairman for the academic year 1975-76.Carpenter also performed heavy counseling and advising forAfrican-American students at the predominantly white cam-pus, and he performed service in the community. Theseactivities some necessary because of the absence ofsenior faculty at the new departnlent and others importantbecause of the special needs of African-American studentsand his volunteer work curtailed his ability to spend timeon his scholarship.

Carpenter requested that two years of prior service heeliminated from the tenure clock so that he could haVe moretime to spend on his research, hut this request was deniedpurportedly because it was not permitted by the pmcedures.Carpenter submitted his materials and the department andcollege committees recommended tenure. The dean did notsupport tenure because of Carpenter's deficiency in scholar-sliip and research. As a result, tenure was denied andCarpenter appealed to the top of the university system, tc,the state's Equal Rights Division. the EEOC, and the Officeof Civil Rights of the Labor Department most concludingthat race was a lac tor in the tenure decision.

Carpenter sued, alk.ging the disparatc-tre:ament and-impact theories of race discriminatit in. but the district courtheld that Carpenter was not discriminated against undereither theory. I le appealed the disparate-impact hokling.The appeals (ARM did mit find that African-Americans were

7i,nnre, Pnnnotion. and Reappointineni i0 91

disproportionately denied tenure. Carpenter tried to showwith nonstatistical, qualitative evidence that the tenure stan-dards had a disparate impact on African-Americans becauseof the many additional burdens in teaching and serviceborne by African-American junior faculty. Carpenter alsoalleged that the application of the seven-year rule created adisparate impact on African-American faculty given the pres-sures they faced. The court rejected all of his claims..Disparate-impact claims, therefore, are very difficult to prove.

Remedies under Title VIIThe Civil Rights Act of 1991 increased the potential financialliability that institutions may face if found guilty of discrimi-nation. Faculty members who are victims of illegal discrimi-nation may receive compensation for lost wages, emotionalpain, suffering, inconvenience, mental anguish. loss ofemployment, and other nonpecuniary losses. Faculty mem-bers also may receive compensation for loss of a futuresalary: this remedy may he recovered in lieu of reinstate-ment if the faculty member is likely to face antagonism andretaliation. Faculty members also may recover attorney'sfees, adjustment of benefits, and other cash awards.Furthermore, the institution also may have to pay punitivedamages if it is found to have intentionally discriminated:the cap on this amount. however, is S300,000 (Leap 1993).Title VII also limits the recovery of back pay for a period oftwo years (Hendrickson and Lee 1983). As mentioned previ-ously, faculty members are required to mitigate their dam-ages before they can recover fully under Title VII.

The most controversial awards for discrimination involvereinstatement, promotion, and tenure. Courts rarely awardthese remedies, stating that they are not qualified to deter-mine whether faculty members would have attained thembut for the discrimination. When the discrimination is clear-ly established, courts have determined that Title VII requiresthat the faculty member be made whole, which means, incertain cases, a requirement that the faculty member bereinstated, pmmoted, or tenured. In Brown vs. BostonI ?nilvrcity ( 1989), the appeals courts upheld the jury's awardof S200,000 for breach of c(mtract, the trial judge's award ofdamages for enlotkmal distress, and teinstatement to theposition of associate professor with tenure.

"I'lw Kumla vs. Muhlenbelg Oillege ( 1978) case is mainly

921 0

BEST COPY AVAILABLE

known for its unusual remedy. Kunda was awarded rein-statement, back pay, promotion to associate professor, andthe opportunity to complete her master's degree within twoyears, after which she would receive tenure. This case is, todate, the only example of a judicial award of "conditionaltenure" (Lalloue and Lee 1987).

Despite Kunda, Brown, and other such cases, courts arestill reluctant to mandate tenure. Courts are more likely toaward loss of future salary and other monetary damages inlieu of tenure. In Foi;-1 vs. Nicks (1989), the appeals courtupheld the faculty member's reinstatement but determinedthat the district court abused its discretion in mandatingtenure, where the university's terMre system specificallyrequired approval by the hoard of trustees.

The awards in lieu of tenure, however, can be substantial.In Clark vs. Claremont Univervity Center (1992), Clark wasawarded Si million in compensatory damages, $16,327 inpunitive damages. and attorney's fees of $419,833.13. Theappeals court upheld this award. In Rajender vs. Univercityof Minnesota (1983), the final consent decree in this sex-discrimination litigation resulted in an award for the facultymember of $100,000, a quota for the hiring of women, and arequirement that three special "masters" be appointed toresolve all past or future sex-discrimination grievancesagainst the university (Leap 1993, p. 162).

Section 1981 and Section 1983Section 1981 of the Civil Rights Act of 1866 prohibits dis-crimination on the basis of race or national origin and hasbeen used by people of color and people who are not U.S.citizens to challenge negative empk)yment decisions(Hendrickson and Lee 1983). Unlike Title VII, Section 1981does not impose any limit on compensatory or punitivedamages (Leap 1993). The standard of proof, hol,vever, isthe same as with the 14th Amendment: 'I'o prevail underSectk)n 1981 the faculty member must show that the institu-tion intentionally discriminated against his or her race orcitizenship (Kaplin).

Section 1983 of' the Civil Rights Act of 1871 prohibits anyperson acting "under color" of any state or local law ftomdepriving any individual of his or her constitutional andlegal rights. Section 1983 also requires proof of intentionaldisci iminatk in, and many public officials are afforded immu-

Tenvre. Promotion. and Reappointment i

9.i

nity unless the actions were blatantly and intentionally ille-gal a very difficult standard to overcome. Since discrimi-nation is usually well-hidden, it is extremely difficult toprevail under these laws. As a result, few cases are broughtunder these civil-rights statutes. lb prevail under sections1981 or 1983, the discrimination must be so indiscreet or thediscriminatory actions somehow must be recorded highlyunlikely situations (Lalloue and Lee 1987).

Title IX of the Education Amendments of 1972Title IX of the Education Amendments of 1972 prohibitsgender-based discrimination in educational institutionsreceiving federal financial aid, and it is administered by theOffice of Civil Rights of the Education Department. Theregulations are similar to those promulgated by the EEOC(Kaplin 1985). The standards for proving discriminationunder Title IX are similar to those of Title VII; faculty mem-bers may prove disparate treatment or impact. If allegingdisparate treatment, faculty members must pn we intentionaldiscrimination (Kaplin and Lee 1995).

Nlost of the litigation involving Title IX has dealt with thescope of coverage of the law; few cases have addressedspecific discriminatory actions. Nevertheless, Title IX is animportant statute for facuhy members who may he victim-ized by gender discrimination for a number of reasons.First. Title IX allows faculty members direct access to acourt, while Title VII requires them to pursue administrativeemedies through the EEOC before initiating a lawsuit

( I lendrickm in 1991). Second. Title IX permits faculty mem-bers to receive uncapped compensatory and punitive dam-ages. while Title VII limits the amount of damages one mayrecover. Finally, Title IX borrows the statute of limitationsfrom state law. while Title VII has a very short time frame inwhich claims must be filed Icaplin and I.ee 1995). The useof Title IX for suits based on gender discrimination, there-fore, is likely to increase.

Age DiscriminationThe Age Discrimination in Employment Act of 196-, orAIWA, prohibits age discrimination apinst people who areat least it) years old. As of Jan. I. 199-i, no faculty memhermay he forced to retire at any age. although voluntary retire-ment plans arc valid (Leap 1993). The ADEA standards are

1 0 6

similar to those of Titk... VII. The facuhy member must offera prima facie showing of age discrimination, at which pointthe c(dlege must show that age is a -bona fide occupationalqualification ncvessary to the nonnal operation of the partic-ular business.' or that the decision was not based upon agetkaplin 1985, pp. 111-2).

The standards for prevailing under the ADEA are just asstringent as those under Title VII. In Fishier z.s. Ashievi

M.:bilk-al College ( 1993), a faculty member ofelectrical engineering technology who had served the col-lege f(ir 26 years on a series of one-year contracts was notreappointed. 'lhe department had instituted a new curricu-lum. deemphasizing sotne existing teaching concepts andat Ming (niter concepts. Fisher had trouble with the newrespoinsibilities and ontinued teaching the outmoded con-(epts, and when confrt mted on otu, occasion challenged thedepartment head to a listfight in front of students. Ile wastransferred out of the department and later informed that hewould not he rehired. I k. was 61 years old, and the collegefilled his position with someoik. who was 36 years old.

Fisher filed a suit alleging age discrimination under theAIWA. illtRidlit'ing 11', evidence the depaitment head's com-ments that he needed -new blood" because Fisher was -out-dated.- .too old.- -behind the times,- and the like. Thecourt detennined that the department head's minments didnot pro\ e that he intended to fire Fisher and replace him" ()tinger Ix'rson. Such statements are indicative ofhias, but they are unlawful only if acted upon. he courtlick! that it is not unlawhil to require older employees toremain ( urrent in 'their jobs and to fire them if they fail to d0s() The MA:A dt K.", not prohibit a ounger perstm fnanteplacmg an okk.r one nor does it require that faculty mem-l,ers IR. released only kw good reasons. It only requires thatdie tat ult members not be discharged because of their age.

In another example illustrating die difficulty of prevailinginder the Al )1:A..10.in (iuudship was denied tenure in the

1 m ersit of Richmond's education department purp(wtedlylIeLatise ol the quality of her research and scholarshipGui,dquip /. I nw('rsur q'Richmond1991). \X'hen she was

In't tutute supervisor noted on her file, -Goodship\\ ill lie 61 at ' !ink' = nuirally obligated to tenure do

e want this?- Goodship received positive performancele\\ s lo tin 1988 thn mgli 1992 hut was cautioned in 1996

The court heldthat it is notunlawful torequire olderemployees toremain currentin their fobsand to firethem if theyfail to do so.

Yemen' l'runi(Ilym. (Mil Reappointment 95.

1 0

by the dean of faculty that she needed to get her researchpublished. She had two articles published, but she receivedmany negative comments regarding the quality of her schol-arship and research. Three of her department peers recom-mended tenure, and one did not. The tenure committeeunanimously recommended against tenure, as did the dean,provost, and president.

During the time of Goodship's review, the university wasfostering an early-retirement program which Goodship con-tended was evidence that the university promoted a "youthculture," and she submitted affidavits regarding negativecomments made, and pressures exerted, against older facul-ty. The court held that she did not satisfy the fourth ele-ment of a prima facie claim. She was a member of aprotected group; she was denied tenure; she was perform-ing in a satisfactory manner: but she did not prove that theuniversity replaced her with a younger person. The court,however, indicated that even if she had established a primafacie claim, the university successfully showed that thetenure denial was due to her deficient scholarship andresearch. The comments placed in her file were made whenshe was hired, and she did not indicate that she was ill-treated in the interim. The early-retirement program. with-out anything more, is not evidence of discrimination. hecourt indicated that such a plan actually gives older employ-ees an option not available to younger ones.

Discrimination Based on Physical DisabilitiesThe Rehabilitation Act of 1973 (Section 504) and theAmericans with Disabilities Act of 1990, or ADA, prohibitdiscrimination against-qualified people with disabilities. Aqualified person with a disability is one who, with reason-able accommodatic)n, can perR)rm the essential functions ofthe job. The acts also require that institutions make reason-able accommodations to known physical or mental disabili-ties unless thi;-; would impose an undi le hardship (Kaplin1985). The ADA expands the rights guaranteed by SectionSO4 and imposes more obligations on institutions (11ill 1992).B()Ill laws are patterned after Title VII and Title IX.

Nlore attention in higher education has been paid tocases involving students with disabilities. And althoughthere are cases involving employees, cases involving facultymembers with disabilities are rare (Leap 1993).

(X)

Nevertheless, the number of people with disabilities isincreasing, and the higher-education community is becom-ing more aware of their needs and legal rights (Rothstein1991). Colleges and universities should be prepared for thisincrease in disabled people. Rothstein recommends thatinstitutions adopt policies clearly defining "disability" anddescribing what constitutes illegal discrimination in hiring,promotion, and retention (1991). In addition, people whocoordinate services for the disabled and who ensure compli-ance with Section 504 and the ADA should be appointed.Furthermore. the higher-education community needs to beeducated about the needs of people with disabilities, theirrights, and how to make facilities and programs barrier-free.

Religion DiscriminationTitle VII prohibits discrin lination on the basis of religion.The bona fide occupational qualification, or BFOQ, excep-tion, however. permits colleges to employ faculty membersof a "particular religion" if the institution is "owned, support-ed, controlled, or managed by a particular religion or theinstitution's curriculum is directed toward a propagaticm of aparticular religion" (Kap lin 1985, p. 138). In Pim, vs. LoyolaUnite Isity qfCbicago (1986), the university's policy ofreserving certain tenure-track positions in its philosophydepartment for Jesuits was upheld as a BFOQ for its teach-ing philosophy (Kaplin and Lee 1990).

The primacy of the First Amendment over Title VII wasillustrated in E.E.O.C. vs. catholic (/niversity ofAMerica(1994). In this case, a nun who had been denied tenure inthe canon law department bnnight a Title VII actkm againstthe university alleging gender discrimination. The courtheld that the First Amendment precluded the district courtfrom deciding the employment-discrimination action. Thecanon law department had a special status within the uni-versity as one of three ecclesiastical departments. TheVatican retained ultimate authority over the department andapproved all tenured faculty members. The Establishmentclause of the First Amendment pothibits the pwernmentfrom entangling itself in an institution's religious affairs. Asa result, the district court is precluded from deciding theTitle VII case. According to the court, judicial evaluation ofthe quality of this nun's scholarship in the canon law depart-ment and prolonged monitoring and investigation by HOC

Tenure, Promotion. anti Reappointment 97

would have constituted excessive entanglement withreligion.

Professor Y and Professor X ScenariosLet us now consider the scenarios that began this section.Professor Y likely would base his disparate-treatment claimon Title V1I's prohibition against race discrimination. If hecan substantiate his claims, Professor Y likely would estab-lish a prima fade claim: fie is an African-American; he prob-ably satisfies the paper qualifications (degree, experience,etc.); he was denied tenure; and other faculty members weretenured with similar or less qualifications. Private Univer-sity, however, may be able to show a "legitimate businessreas(m" for the denial. A court probably woukl not questionthe university's publicatkms or research criteria or how theyare applied; courts likely would o insider the application ofthese criteria within the discretion of academic professionals.

And Private University's deciskm, based upon the claimthat Professor Y is "hard to get along with," it proved withstatements from students and ct)Ileagues, probably woukl beconsidered valid or at least negate the claims of bias. IfProfessor 1' can establish, as the faculty member did inClark, that the "racist" remarks impacted the decision againsthim (that is, that the department vote would have beenstronger) and that the subsequent reviewers were motivatedby discrimination or were influenced by the discriminatorydecisk ms of the department committee, then he may he ableto show that the university's reasons were pretextual.Furthermore, he may be able to introduce statistics and omit-parative data showing that no African-American has everbeen tenured or that white faculty members have beentenured with less qualifications. If Professor 1' shoukl pre-vail. Title VII would permit the court to order the universityto grant him tenure although a court is more likely to awardhim monetary damages.

PrOfessot X also woukl be able to make a disparate-treat-ment claim under 'I'itle VII, bla there is enough informatkmindicating that she also may have a disparate-impact claimagainst Public I 'niversity. Furthermore, she also may havedisparate-treatment and -impact claims under Title IX andperhaps constituti(mal claims as well (because it is a publicinstitutkm). To prevail on omstitufkmal gmunds, Pr(iessorX would have to prove intentional discrimination, whk-h

would be difficult. Professor X likely would estabhsh a pri-ma facie showing: She is female. with appropriate qualifica-tions. who has been denied promotion, while men withsimilar or fewer qualifications were promoted.

The university can show a legitimate reason for thedenial: namely, that Professor X did not have the ne,:essarypublications. She may be able to show that she was treateddifferently than the males in her department (that she wasmisled as to what she needed to (10 to be promoted). Thisis what happened in Runda. Should Professor X prevail,the court may order the university to proin)te her; promo-tion to full professor may not be as drastic a remedy astenure. The disparate-impact claim is based upon her argu-ments that a second ho(ik requirement disproportionatelyimpacts women. But a second book requirement may be"legitimate.- and courts are extremely reluctant to substitutetheir judgments (if what is an appropnate qualificatkm for aninstitution. Furthernnwe. PR)fessor X may not be able toestablish an alternative that would satisfy the institution'sneed to have qualified full pRifessows and be less discrimina-tory toward women.

SummaryEmployment-discrimination cases are increasing. Ni)t onlyare women and faculty of color increasingly filing such law-suits, but white males also increasingly are alleging racediscrimination for negative reappointment. pRmlotion. andtenure decisions. As a result, it is important for faculty andadministrators to he familiar with employment-discriminatkmissues.

Although the Constitutkm and state laws prohibitdiscrimination, the bulk of the empl()yment-discriminationlitigation has involved a number of federal civil-rights laws.especially Title VII of the Civil Rights Act of 196.1. Federalcivil-rights laws impose a lighter buRlen of proof on f;icultymembers alleging illegal discrimination than does theConstitution. These laws also provide better guidance lorinstitutions for avoiding discrimination.

The best advice for avoiding these types of lawsuits is totreat ceryone fain\ and to judge rat uhy members on thenmerits. This ad ice is too simple, of course. Given theinherent subjeon ity of the promotion and tenure process.what is considered fair or meritorious is difficult to deter-

TO Mire. I'M llintion, and Reappuinimort

i99

mine and will vary from person to person. Furthermore.some policies or practices adversely affect women and facul-ty of color; these should be reviewed to ensure that they arenecessary and that better alternatives do not exist to protectthe individual rights of all faculty members while still ensur-ing a diverse and qualified faculty. Regardless of whetherthese reviews are made, colleges and universities shouldjustify their reappointment, promotion, and tenure decisionswith clear data and careful documentation (Hendrickson andLee 1983).

100

AFFIRMATIVE ACTION, DIVERSITY, AND INDIVIDUAL RIGHTS

Consider this scenario:Southern State University has implemented an affirma-tive-action plan in an effort to eliminate the effects ofits prior race and gender discrimination. Universityofficials believe that general societal discrimination hasled to low representation of faculty members who arewomen or people of color. But more importantly forthe university, its own past discrimination has led to aserious underrepresentation of women and people ofcolor in its faculty ranks, so the university has had adifficult time attractiry; and retaining such faculty mem-bers. In addition to directing its various schools andcolleges to consider positively the gentler, race, andethnic background of faculty candidates, the universityalso rewards schools and colleges that can increase thenumber of qualified tenured faculty members who arewomen and people of color. Specifically, the universityuses money, space, and internal grants as incentives toincrease the diversity of its faculty. Furthermore, thecentral administration has set aside a portion of its bud-get for tenured faculty lines for departments that wantto retain an "outstanding" traditkmally underrepresent-ed cand idate but do not have the necessary resources.

What legal bases does Southern State University have tojustify its affirmative-action plan? Would this plan hold up incourt?

Few topics are as controversial in this society today asattumative action Affirmative action has been referred to as"a time bomb primed to detonate in the middle of theAmerican political marketplace" (Roberts 1995, p. 32).Politicians are running campaigns threatening to eliminateany pnigrams promoting gender and racial preferences, andthis issue or more accurately. the rhetoric over this issue

may determine the outcome of important elections.including that for the presidency of the I foiled States.Courts also increasingly are hearing cases challenging affir-mative-action plans. This attack on affirmative action proba-111 is due to a slow-growing e.")nomy. stagnant middlc-ckissM( utiles, and empk)yer downsizing all of which makethe decisic in of' who gets hired. promoted, and fired muchmoi e

!emery. Pmmolimt. Reappiiifinient 101

i I 5

fl?

Higher education has not been spared from this contro-versy (see Cahn 1993: (hrmide qf lit;gber Education. April28, 1995). The perception is strong that white faculty mem-bers are being discriminated against as a result of affirmativeaction. The reality, however, is that the percentage ofwomen faculty and faculty of cokg lags fitr behind that ofwhite males. The 1995 edition of the Unmade of IligberEducation Almanac lists the percentage of full-time femalefaculty members at 27.9 percent. African-Americans. Asians,lispanics, and Native Americans made up. respectively .1.9,

5.3. 2.5. and O. percent of all full-time faculty members.The old adage that "numbers can lie- does not seem toapply here. It is apparent to all that women and faculty ofcol,'r are seriously underrepresented in the faculty ranks ofAmerican institutions of higher education.

Most affirmative-action plans favor women, African-Americans, Asian-Americans. Latinos, and Native Americans.but each group benefits differently at different institutions.For example, Mexican-Americans may benefit more thanAsian-Americans at V'estern institutk ins than they might atEastern institutions because there is a larger number ofAsian-Americans at these institutions, or Asian-Americans areperceived as not needing preferential treatment (see (hanand Wang 1991). Opponents of any program that benefitsany particular group contend that all racial and gender pref.-erences should be made illegal. They argue that innocentpeople (often referring to whit(_' males) should not have topay for the "sins- of others. Affirmative action in facultyemployment is controversial because it potentially poses a

conflict between two important American and higher educa-tkm values: that all candidates deserve an equal opportunityto he hired, pnmuited, and tenured, and that hard work andmerit not race. gender. religion, or any other characteris-tic !Or which they have no control should determinewhich candidates succeed.

In higher educatkm, recent demographic and ethicaltrends have made the racial and gender diversity of the fac-ulty an imponant goal. By increasing diversity, often accom-plished thnmgh affirmativc-actkm po)grams, colleges anduniversities sometimes have been accused of violating theindividual rights of some faculty members. And althoughcourts and legislatures often have been involved in thesedisputes. institutions of higher education must learn how to

102

balance the need for diversity with the protection of individ-ual rights without clear guidance from courts or legislatures.

While courts have upheld preferential treatment for peo-ple of color and women in some situations, they often haveckme so with reservations and conflicting guidance. Giventhe importance of this issue in higher education. facultymembers and college administrators should have somesense of the legal implications of affirmative action. Readersshould understand. however, that given the inconsistency ofthe couns. and the social and political climate in this coun-try, any discussion of the legal implications of affirmativeaction must he tenuous at best.

Arguments For and Against Affirmative ActionProponents of affirmative actk in have defined it as a-response to a history of discriminatory attitudes and actkmsagainst nonwhite people that prevented them from realizingopportunities that were available to whites, even when thenonwhites had equal or superior qualifications- (seeWashington and flarvey 1989, p. 9). This definition takesinto consideration the historical reality of discrimination inits definition. Opponents may see the issue more simply:They have defined affirmative actkm as -giving special treat-ment to some candidates cm the basis of their membershipin a target group- (see Nlarkie 1993. p. 2-6). An institution'saffirmative-actkm pr()gram will give some gomps preferen-tial treatment in reappointment. promotion. and tenure deci-sions. but the reasons fOr doing so are to eliminate theeffects of the institution's own or societal discrimination.

Affirmative actkin has been justified as a step toward amore just society (Francis 1993) and has had wide supportin academia (see "AAUP Re-Endorses Affirmative Action-199;; (:ahn 1993: Washington and I farvey 1989: West 1993).Affirmative action also has been criticized as leading to-reverse discrimination- and heavily opposed (see Markie1993; Sowell 1990; Steele IWO). The oppositk in seems begrowing today, and some ciAleges and universities atereccmsidering their affirmative-actk in policies. For example,the regents of the University of California voted on July 2(1.199'S. to end affirmative action in admissions and hiring,apparently in response to political pressure (Chronicle qfligher Education, Aug. I. 19951.

Prop(ments of affirmative action contend that the lack of

Tenure. PromoliMi. and MyippoilaMellt 0.3

a diverse faculty undermines important institutional goals.Affirmative action which increases the hiring and promotionof a diverse faculty is important because these faculty mem-bers bring to the campus new perspectives based upon theirexperiences and backgrounds; they provide role models forstudents; they prepare students of color to assume leader-ship roles; they support scholarship dealing with race andgender issues; and they challenge the notion that womenand faculty of color are not competent (Washington andHarvey 1989).

Students who are women and members of racial andethnic minorities, whose numbers have increased at manycolleges and universities, especially henefit from a diversefaculty. Some of these.students have not encountered aperson of color in a faculty position. Before these studentsmove int() leadership positkms, it can be argued, they mustencounter and interact with women and faculty of color inorder to challenge the "myth about the intellectual and cul-tural inferiority of minority groups" (Washington and Harvey1989, p. 3). To increase the number of women and facultyof color in academia, diverse role models and mentors areneeded t() encourage and support their entering theacademic profession.

\\omen and faculty of color have made many gains inacademia hut still face discrimination. Although antidiscrimi-nation laws are intended to protect them from illegal dis-crimination, these laws often are not enough to prevent it(see wisinington and I Iarvey 1980. West 1993). The natureof the reappointment, promotion, and tenure process makesit exceptionally difficult to prove discrimination. And evenif a faculty member is able to obtain enough financial, legal,and moral assistance to pursue a discrimination lawsuit,courts generally (Iefer to the institution's expertise in theseempk)yment matters. Antidiscrimination law may be slow.costly, and piecemeal and thus inadequate to the challengeof ending discrimination (Clague 1987). Affirmative action,therefore. corrects for discriminatory practices in the promo-tion and tenure process because these practkes usually aresubtle and difficult to eradicate (Francis 1993).

Opponents of affirmative action contend that it is unethi-cal because it involves doing an injustice to qualified candi-dates who are MA promoted or tenured to make way for anaffirmative-action candidate of equal or lesser qualifications;

1 1

in effect, nonaffirmative-action candidates must meet a high-er standard to gain tenure (Markie 1993). Affirmative action,it may be argued, supports "victims" of past discriminationby discriminating against others. Opponents would contendthat reappointment, promotion, and tenure decisions shouldbe based upon merit, not on the basis of a faculty member'srace or gender.

Other opponents of affirmative action have contendedthat it does not benefit women and people of color in thelong run. Instead, affirmative action imposes on them asense of inferiority (Steele 1990) or makes them feel self-hatred and guilt (Rodriguez 1982). Academia values meritabove all else, and women and people of color may beperceived as not being qualified to hold faculty positions.Affirmative action, which means to correct past discrimina-tion, may also stigmatize the people it means to benefit'.Banks contended that affirmative action has been linked to alowering of standards. Women and people of color, nomatter how exemplary their training and credentials, "arevulnerable to insinuations that merit was not the main factorin their appointment" (1984, p. 333). He argued that nomatter how valuable affirmative action may be, it may be thecause of white hostility and resentment toward people ofcolor and women, thereby resulting in subtle stigmatization.

Faculty members who are not the beneficiaries of affirma-tive-action programs may believe they are the victims of"reverse discrimination. These faculty members are morelikely to challenge affirmative-action plans in court, allegingviolations of their civil or constitutional rights. Colleges anduniversities, especially those not required by a court toimplement affirmative-action plans, must balance the needfor a diverse faculty with the individual rights of facultymembers who are not members of the benefiting groups.This balance involves legal as well as moral id politicalramifications.

This report does not dwell on the moral, philosophical. orpolicy implicatkms of affirmative action. Instead, it focuseson the legal implicatkms. Specifically, affirmative actioninvolves two complex legal questions: To what extent areinstitutions of higher education legally entitled to use ra( ial

'Some may argue that rat IsIll and sexiNni. not alfirmathc actiotl. migmattz('po)pk. c)f color.

Mnitre, Promotion. and Reapmnntmon 105

1

or gender preferences in reappointment, promotion, andtenure decisions; and what are the limits to the use of gen-der or racial preferences in the reappointment, promotion,and tenure process (Kap lin and Lee 1995)?

The Legal Status of Affirmative ActionThe legal status of affirmative action is difficult to gaugetoday. Congress and a number of state legislatures maymake affirmative action illegal in many situations or at leastsharply limit its legality in public empl()yment. TheSupreme Court justices have been sharply divided andinconsistent in these cases. Furthermore, changes in thecomposition of the Supreme Court in the nineties are likelyto result in different holdings (Kap lin and Lee 1995).Readers should he aware. therefore. that any discussion ofthe legal principles of affirmative actkm is subject to becomedated as soon as it is written. Nevertheless, affirmativeaction in certain situations is legal and until (or if) it is madeillegal or seriously undermined by the courts or legislatures,an understanding of its principles is important.

In general, the federal government has provided theimpetus for affirmative action. Through Title VII and exec-utive orders 11.216 and 11375. the federal government hasattempted to prohibit discrimination and to eliminate thediscriminatory effects of the past. Executive orders 11246and 11375 have been the major focus of federal affirma-tive-action initiatives by prohibiting discrimination basedupon race, color, religion, gender. and national origin, andrequiring federal contractors and subcontractors to developaffirmative-action plans. Institutions also are subject toaffirmative-action requirements regarding people with dis-abilities, disabled veterans. and Vietnam veterans underSection 503 of the Rehabilitation Act and the Vietnam EraVeteran's Readjustment Assistance Act of 197i (Kap lin and1.ee 1995).

Affirnmtive action was initiated in higher education by thepassage of the Equal Employment Opponunk Act of 1972,which inlposed guklelines lir the recruiting andhiring of faculty and staff as a oniditkm f(ir receiving federal

ial support (Washington and Ilarvey 198)). Federallaw and initiatives also have provided the impetus for affir-mative-actkm poigrams in higher education. A recentSupreme Court ruling. however, may endanger a number of

1

federal affirmative-action programs. The Supreme Courtrecently held in Adarand Construclom, Inc. vs. Pena ( 1995)that governmental affirmative-action programs must beproved to promote "compelling" governmental ends and be"narrowly tailored" to meet those ends* a very difficultstandard. Although this ruling dealt directly with federalcontracts programs and did not deal with affirmative-action plans at colleges and universities it may affect therequirements of affirmative-action programs imposed oncolleges and universities by a number of federal civil-rightslaws (see (hronicle Higher Education, June 23. 1995).But affirmative-action initiatives may be in jeopardy at publicinstitutions as well. The Supreme Court refused to grant aUniversity of Maryland appeal of an adverse federal appealscourt decision holding that a scholarship for African-Americans violated the 14th Amendment (Podbereskr rw.Kiru'an 1995). These cases, the holding in Adamndand itsrefusal to hear the I7niversity of Maryland case, indicate lum.the current justices on the Supreme Court feel about affirma-tive.action.

Today. Inmvver, affirmative-actkm pr<Trams are legallypermitted sometimes required to overcome the effectsof an institution's own present or past discrimination, andthey are less justified when no present or past discriminationis shown (Kaplin and Lee 1995). Affirmative action is notrequired unless a court has ordered an institution to eradi-cate the effc2cts of its own discrimination. The issuebecomes less clear when institutions voluntarily implementaTirmative-acticm plans to eliminate the efiects of societaldiscrimination or because of an imbalance in the number orpercentage of w(nnen and people of colca. in the labor mar-ket and in faculty positions.

Affirmative Action and Title VIITitle V11 does not require an institution of higher educationto give preferential treatment to wc mien or people of colormerely because their numbers are low in the faculty ranks.But courts sometimes have required hiring preferences orgoals if the reason fot the li)w representatii m is due to an

vIlie (Aunt lickl th.tt .111 gmetntnental .111inn.ttive-action program. ill hetinalvzed using the constitutit m.11 -.Alit I "Comm II mat\ /mg

y. ",thict It:quire, -Compelling governmental ti1'ete,1%.'Itti Sillu v lue -turtovI tallow& to meet Mow mien.,

lenutr. Pnirmilion. mut Reappiinlnu,01

Affirmativeaction is notrequired unlessa court hasordered aninstitution toeradicate theeffects of itsowndiscrimination.

10-

institution's own discriminatory practices (Kap lin and Lee1995). Furthermore, Title VII does not require institutions topoint to their own past discriminatory practices to establishvoluntary affirmative-action plans for the reappointment,promotion. and tenure of women and people of color. Aninstitution may justify its affirmative-action program on a"manifest imbalance- in the workforce (Clague 1987. p. 250).

Voluntary affirmative-action plans by private colleges anduniversities are permitted under Title VII. In Weber rs.Kaiser Aluminum Co. (19-'9), the Supreme Court reviewedand upheld a company's plan providing admission to a newskills-training program on the basis of one African-Americanfor every white worker until the proportion of African-Americans in the field reached their proportion in the laborforce. A white worker denied admission to the trainingprogram claimed that he was the victim of reverse discrimi-nation because he had more seniority than the African-Americans selected. The Supreme Court held that Title VIIdoes not prohibit employers and unions in the prinue sectorfrom voluntarily developing affirmative-action plans to enda "man ilest ntcial imbalance in "traditimudly segregatedjob categories.-

Kaplin and Lee pointed out several critical factors affect-ing the outcome in Weber (these factors must he satisfied tojustify affirmative action in private higher education):

1. There was a "manifest racial imbalance- in the job cate-gories for which the training program had been estab-lished:

). The job category had been traditionall segregated. ai.drampant discriminatkm in the past had contributed to thepresent imbalance:

3. The plan did not "unnecessarily trammel- the interests ofwhite empl()yees (it did n( it bar white empl()yees fr(imadmission to the program): and

i. It was a temporary measure designed to bring African-American representation up to that of the area's work-lOrce (1995, p. 258).

For public institutions, the issue is less clear. They are sub-ject to constitutional restrictions and so are required to over-cc mile the more difficult legal test of "strict scrutiny" in orderto establish affirmative-action plans. Nevertheless, public

los

12:4

institutions apparently also may be able to establish volun-tary affirmative-action plans under Title VII to attract andadvance women and people of color in their faculty ranks.In Johnson rs. 7rampor1atim Agency (1987), the SupremeCourt upheld an affirmative-action plan intended to increasethe number of women and racial minorities in jobs in whichthey traditionally were underrepresented. A male employeechallenged the promotion of a woman with lesser qualifica-tions. The court applied its reasoning in Weber to reviewthe affirmative actkm in the public sector: There was a"manifest imbalance- in the job category; the plan had not"unnecessarily trammeled- the rights of male employees(they did nin have a right to promotion, and they retainedtheir prior employmera status): and the plan was temporary( it attained, rather than maintained, a balanced workfi)rvel.

Clagtie indicated that the jobnswt case settled severalissues for employers, including institutions of higher educa-tion.

Titk. VII suppcms voluntary affirmative-actkm plans atpublic and private institutions;

2. Preferences may extend to promotion and tenure as wellas hiring.

3 The instituthms may treat race and gender as "plus- fac-tors in pnimotion and tenure decisions because there is a-eimspkihms imbalance- in this traditkmally segregatedjob category:Fxclusive faculty hiring lines for women and people ofcok sir likely are unlawful;

S. Quotas, fixed munhers. or fixed percentages probably areunlawful;

ii Affirinative-action plans must be temporary means of«mthating the effects of discrimination to attain ratherthan maintain race and gender balances (1987).

IICher and jobitcou notwithstanding, the Supreme Court hasbeen sharply divided on the issue of' voluntary affirmative-action plans, and (olleges and universities shoukl mn auto-matically assume that all of these plans will be upheld in«flirt tppaientl% . mlleges and universities that can demon-strate a serliki. Underrepresentation of women and people

iolor in their facult ranks and that can demonstrate a"manifest imlmlance- in the propimion of qualified wcnnen

Plurmatini. and Mqllyniinnneln

1 2109

and people of color in the labor market and on their facul-ties may be able to develop affirmative-action plans to rerne-dy this situation (Kap lin and Lee 1995).

The Supreme Court cases uphokling such affirmative-action plans, however. have indicated that the proper criteri-on for proving "manifest imbalance" in professionaloccupations requiring specific skills is the proportion ofqualified candidates in the appropriate labor market. As aresult, institutions of higher education may find it very diffi-cult to demonstrate this imbalance because of the smallnumber of people of color who have doctoral degrees andthe small number of women who have doctoral degrees incertain fields (Kap lin and Lee 1995).

In Enri,qht vs. calyarnia State Vitiversity (1989), an affir-mative-action plan calling for gender-conscious hiring wasupheld under Title VII. The court deteniiined that the dis-parity between women who have doctoral degrees in sociology and the proportion of women in the department was a"manifest imbalance," and that the proportion of women inthe population (50 percent) and the pmportion of womenwith Ph.D.s in sociology (34 percent) made sociology a "tra-ditionally segregated" field (Kap lin and Lee 1995. p. 270).The court also was persuaded that the plan was a temporarymeasure, had used goals (not quotas), and that the malewho was not hired was not entitled to the position.

In a Title VII case, the faculty member charging reversediscrimination may have to prove that the position is notwithin a -traditkinally segregated job category," and thisnecessarily involves a historical analysis (Clague 1987, p.25,t). People of color ire underrepresented at most institu-tions of higher education (except historically black institu-tions) and in most fields. Women are underrepresented atmany institutions and in many fields. Vbmen and people ofcolor are especially underrepresented in the tenured facultyranks. Are faculty positions a "traditk many segregated jobcategiwy"? At many, but certainly not all, institutions, thefaculty traditionally have been segregated. Courts have notmade it clear whether faculty positi( ins, for affirmative-actionpurposes, should be subdivided by mnk, discipline, or b,.institutional type (o)mmunity colleges, state universities. orresearch institutk ins, for example) lClague 1987l.

Affirmative-action plans that "unnecessarily trammel"anyone's interests are not likely to be upheld, even if volun-

110

tary, temporary, and intended to remedy a "manifest imbal-ance" in the profession. Although reappointment, promo-tion, and tenure decisions usually are made on the basis ofindividual merit and faculty members are not, in theory,competing with each other, situations exist in which a posi-tive decision for one faculty member results in a negativedecision for another (for example, where the department isvery small or is experiencing budget problems. or in situa-tions in which there is a limit on the percentage of tenuredfaculty members in a given department). In these situations.institutions must be aware of the potential legal ramificationsof their decisions. Since faculty vacancies (or specialappointments such as department-chair positions) becomeavailable infrequently and on an irregular basis, a decisionthat the opening should be filled by a woman or person ofcolor may lead to a reverse-discrimination lawsuit by a whitemale, who effectively may have been "barred" from theposition (Kaplin and Lee 1995).

Court-ordered affirmative-action po)grams are on themost stable legal ground. Such affirmative-action plans havebeen required of institutions that have been found to havediscriminated against women or people of colcw. For exam-ple, in Palmer is. Distrkt Board of Thtstees c,f St. Petersburgjunior College ( 1984), a federal court upheld an affirmative-action plan calling for race-conscious hiring goals becauseFlorida's higher-education system had been found to havediscriminated in the past. An African-American male hadbeen selected for a teaching position instead of Palmer, awhite male who had been in the position on a temporarybasis. Palmer alleged race and age discrimination but didnot challenge the affirmative-acti(m plan. Applying theWeivr test, the court determined that Palmer's interests werenot ''unnecessarily trammeled" because he was not -reap-pointed." lf, instead, he had been "discharged." the c(iiirtmay have ruled otherwise (Kaplin and I.ee 1995, pp. 2(0-70).

Affirmative action and tbe ConstitutionConstitutional limits on affirmative action stein Irian the FithAmendment's Fqual Protectim Clause and apply to publicinstitutions. Even if federal or state law permits race or gen-der preferences in faculty empkcyment, the Equal ProtectionClause likely woukl prohibit them unless the public institu-

'IMI'. P1*(0110/1.011. (Mei Reamncinlinelil

1

tion is found to have discriminated in the past (Clague 1987:Kap lin and Lee 1995). It is unlikely that the Constitutionpermits any affirmative-action program that is based on raceor gender preferences absent a showing of past or presentdiscrimination.

Although affirmative-action plans may be legally permit-ted to eliminate the effects of present or past discrimination,the Supreme Court also has implied that some racial prefer-ences may be justified on academic freedom grounds(Clague 1987; Van Alstyne 1993b). In University ofC.:alifornia Regents vs. Bakke (1978). the Supreme Courtinvalidated on constitutional grounds the University ofCalifornia at Davis' affirmative-action program that delegateda certain number of seats in the medical school to studentsof color. justice Powell, however, wrote an opinion inwhich four other justices agreed permitting institutions touse race as a positive factor in admission decisions. Powellindicated that the Constitutkm would permit an institution tostrive for a diverse student body. By implication, theConstitution also would permit an affirmative-action planthat increases the diversity of an institution's faculty. Powellstated that the University of California:

in arguing that its universities must be accorded the rightto select those students who will contribute the most to therobust exchange of ideas ... invokes a countervailing con-stitutional interest, that qf the First Amendment (p. 313).

Affirmative-action programs giving gender or race prefer-ences in the reappointment. promotion, and tenure ofwomen and people of color probably are constitutionallyvalid if they are intended to remedy past discrimination. Amajority of Supreme Onirt justices have approved affirma-tive-action plans intended as remedies for past discrimina-tion in International Association ofFirelighterx vs. cio.Cleveland (198() and Local 28 of Sheet Metal Win-kers'Internatimal Association tw. BEOC ( 1986). InternationalAssocktlion of Firefighters involved a consent decree callingIOr race-conscious promotions, and Sheet illetal Irotkersinvolved acces to union membership and its training pro-grams. In United Stales vs. Paradise ( 1987), the SupremeCourt also upltekl a court order requiring that 50 percent ofpronlotions to corporal within the Alabama State Troopers

112 120

be awarded to African-American candidates because theyhad been systematically excluded over the years, and therehad been resistance to court orders (Kap lin and Lee 1995).

Another case illustrating the legal system's approval ofracial preferences to remedy past discrimination is Videntineus. Smith (1981). A white female faculty member challengedArkansas State University's affirmative-action plan after ateaching position she had sought was given to an African-American candidate. She had applied for a position fromwhich she previously had resigned and was the top candi-date. But the university, acting on an affirmative-action planimplemented to desegregate the state higher-education sys-tem, placed two African-American candidates ahead of herand hired one of them. Valentine sued, alleging that theaffirmative-action plan violated the Equal Protection Clause.The court disagreed, holding that racial preferences may beused to remedy the effects of past discrimination.

In upholding the affirmative-action plan the court heldthat:

1. The affirmative-action plan was designed to attain a bal-ance in the workforce;

2. It lasted only so long as necessary to achieve its goals;3. Unqualified applicants were not hired; and4. It did not bar whites from the positions and did not

"unnecessarily trammel- their interests (Kap lin and Lee1995).

\Although Vleantine vas a constitutional case, the reasoningby the cow i paralle

)

ed that of the court in Weber, a Title VIIcase. The court in Valentine also was persuaded that gener-al societal discriminaticm led to the underrepresentation inthe racial makeup of the faculty (Kaplin and Lee 1995).

In City of Rkhinond vs. I.A. Croson (1989), however, theSupreme Court made it much more difficult for an institutionto justify affirmative action under the Equal ProtectionClause, and it rejected the argunlent that general societaldiscriminatkm justified explicit race quotas. The court inval-idated a pn)gram that set aside public construction contractsfor minority subcontramrs, holding that the EqualProtection Clause of the 14th Amendment required a "strictscrutiny" test for legally justifying race preferences. Underthis standard, the program must be shown to serve a -corn-

Tenure, l'romotion, and Reappointment /Li

pelling governmental interest" and it imist be "narrowlytailored" to meet that interest. This standard of proof isextremely difficult to satisfy, and probably only egregiouspast discrimination would justify any plan that sets aside acertain number or percentage of positions for women andtraditionally underrepresented faculty members. Recently.the Supreme Court made it clear that "strict scrutiny" will'apply for governmental affirmative-action programs (seeAdamnd Constructors, Inc. vs. Pena 1995).

Most of the cases previously discussed dealt with hiring.pr()inotions, or advancements. When affirmative-actkmplans are used in layoffs. the courts have been much lesswilling to uphold them (Kaplin and Lee 1995) or they willrequire a demanding standard of justification (Clague 1987).In 1r):twnl lc, f,ckcvn Mard &Inc-alum (1986). theSupreme Court held that an affirmative-action plan contain-ing a retention/layoff provision for public-school teachers ofcolor vichted the Equal Protection Clause. The court wasconcerned that this plan attempted to match the percentageof teachers of color to the percentage of students of color.but it did not invalidate all affirmative-ktion layoff plans.

Courts no longer will be likely to accept on constitutionalgrounds a justification based upon general societal discrimi-natkm. Title VII affirmative-actkm cases, therefore, are morelikely to succeed in higher education because they permit a

showing of "manifest imbalance." And this is more likely tohappen at private institutions. Publk. institutions are subjectto constitutional obligations, and plaintiffs lik,Ay will frametheir arguments in constitutional, not Title VII, termsmaking it much more difficult for public institutions todefend their programs.

Nor will courts likely accept affirmative-action plansbased upon a need to increase role models for students,especially students of color. This argument was rejected intryga n t (Clague 1987). An argument frvmed in terms offaculty integration (as a result of desegregation). however.has not been explicitly rejected by the Supreme Court. InW.igant, the school Nyard attempted to frame its argumentin terms of school desegregation rather than employment-discrimination law by characterizing its plan as a "commit-ment to an effective system of integrated education" (p.21()). Thk argument could have focused the c(airt on1.3mwn vs. Mani glMucatiml Thpeka (195.i) and other

114

desegregation cases rather than employment-discriminationprinciples. But the court refused to view this case as aschool-desegregation case, leaving Open the possibility thatsuch a justification may later validate certain affirmative-action plans. This is unlikely, however, given some of thecurrent justices' suspicion toward (or even opposition to)affirmative-action programs.

To survive the "strict scrutiny" test for race- or gender-conscious policies in reappointment, promotion, and tenuredecisions, the Equal Protectkm Clause would require publicinstitutions to prove past discrimination and that the institu-tion has attempted to remedy the discrimination withoutrace- or gender-conscious policies (Kap lin and Lee 1995).Absent a showing of past discrimination, public institutionsare not likely to justitY an affirmative-action plan intended toincrease the number of underrepresented faculty members.

ide VII, on the other hand, makes it easier for privateinstitutions to justify affirmative-action plans in reappoint-ment, promotion, and tenure policies, especially if they havea history of past discrimination*. The use of quotas, howev-er, probably is unlawful. Although Weber permitted the useof quotas by private employers, the Supreme Court inJohnson and Croson indicated that quotas may be illegal onconstitutional and Title VII grounds (K.:11)1in and Lee 1995).Institutions that use race or gender as a "plus" factor may beable to satisfy the Title VII test more easily. Affirmative-action plans, nevertheless, should be reviewed to ensurethat no one's interests are "unnecessarily trammeled.' (underTitle VII) or that they can survive a "strict scrutiny" test(under the Constitutk)n) lp. 2651.

Affirmative action and the facultycontract of employmentMost of this discussion of affirmative action has fOcused onchallenges by faculty members alleging reverse discrimina-tion. Women and people of color may, however, use thelanguage in the contract of employment to require institu-tions to use race or gender preferences in reappointment,promotion, or tenure decisions. In Goothnan s. HoardTrustees of (,Oinniunity Colleqe District 525(1981), a court

'This ould apply to publir insututtons only if the claims ale Iik'd underTitle v11 highly unlikely. given recent Stiprenie Cour( decisions making itmore difficult for public entities to lustify iiffinuative-action

Tenure. Promotion. and 1?eamsonmoit

2 'z1

115

held that an employee may prove that the college's affirma-tive-action program was incorporated in the employmentcontract, and her failure to receive a promotion was abreach of that contract. Goodman had applied for the posi-tion of assistant dean of admissions and records, but insteada younger male was appointed to the position. And in So lavs. Lafigette College (1986). discussed in Section Two, acourt held that the college's failure to consider So la's gendermay form the basis for a breach of contract claim.

Institutions should ensure that their institutional docu-ments actually reflect their intentions. In Scelsa vs. Cityl'iliversity of iVeu York (1992), the university was preventedfrom relocating its Calendra Italian American Institute andreassigning its director. The director sued under Title VII,claiming that the university's affirmative-action plan. devel-oped two decades earlier, had designated Italian-Americansan underrepresented group among its faculty. and the insti-tution had done little to benefit this group (Kaplin and Lee1995). The court granted an injunction (a court order pre-venting the institution from acting as it intended), holdingthat the university failed to follow its voluntarily adoptedaffirmative-action plan. Institutions, therefore. should peri-odically review their policies to ensure that they are protect-ing (and benefiting) the intended groups.

Southern State University ScenarioLet us return to the Southern State University scenario.Southern State University's affirmative-action program maybe legally justified under Title VII and the Equal ProtectionClause if the university can show that it indeed is attemptingto remedy the effects of its prior discriminatkm, and that itdoes not use quotas. In addition, the affirmation plan doesnot require the ponnotion or tenure of underrepresentedfaculty; it merely rewards those schools that promote ortenure those underrepresented faculty members who arequalified. No white male is being replaced or rejected,although departments that have limits on the percentage oftenured faculty members may he subject to discriminationclaims if they base their decisions solely upon race.

Title VII also might permit a justification based on theunderrepresentation of woinen and people of color on itsfaculty if the university can show a "manifest imbalance" in

the job market. The proper comparison for determining thisimbalance is the percentage of qualified women and peopleof color in the appropriate job market. This standard mightprove extremely difficult for the university since only a smallpercentage of people of color have the necessary doctorate,and women with Ph.D.s are underrepresented in manyfields. But a lawsuit challenging this plan likely would befiled on constitutional grounds, necessitating the applicationof the "strict scrutiny" test. The Equal Protection Clauseprobably would not permit an argument based upon a"manifest imbalance." Faculty lines reserved for a woman orperson of color may not survive a challenge of reverse dis-crimination because in effect white males would be barredfrom qualifying for these positions. Regardless of NN hetherSouthern State University's affirmative action is legal. itmight be criticized. internally and externally, on moral,philosophical, and political grounds.

The Diversity Dilemma: BalancingInstitutional and Individual RightsAffirmative action in the reappointment, promotion, andtenure process seeks to accomplish three goals: Eliminatethe effects of an institution's own present or prior discrimi-nation against women and people of color: remedy societaldiscrimination and increase the representatkm of womenand people of color in the faculty ranks: and promote racialand gender diversity on college campuses. But as the cur-rent debate makes clear, faculty members who do not bene-fit from affirmative action may believe their individual rightshave been violated and that they have been the victims of"reverse discrimination." Institutions of higher educationmay believe that a balance between the wilds of affirmativeaction and claims of reverse discrimination is impossible toattain, although they should strive to do so.

Courts probably will expect that institutions admit to pastdiscrimination to justify affirmative-actkm plans. This causesa dilemma for institutions. On the one hand, if institutkmsconfess to past discrimination, they risk litigation fromwomen and people of color for discriminating against them,even if they seek to remedy the situation. If they do nottake affirmative actkm to eliminate the effects of past dis-crimination, they also may be subject to a lawsuit from

Torun,. PromatUm, aiul Reappointmoa 117

women and people of color (see Clague 19871. On theother hand, individuals who are not benefited from theiraffirmative-action plans also may sue the institutions, claim-ing reverse discrimination.

Nevertheless, institutions have been able to justify affir-mative action if they are attempting to remedy the effects oftheir own discrimination. In addition. Title VII permits pri-vate and public institutions to implement voluntary affirma-tive-action plans if there is a "manifest imbalance" in the jobmarket; if the pktns are only temporary; and if the interestsof faculty members not subject to affirmative action are not"trammeled." Public institutions, however, are subject tomuch stronger standards of justification on constitutionalgrounds. In today's societal and political climate, the legali-ty of affirmative-action programs are in question, pailicularlyin that these programs were meant to be temporary.

Affirmative action has moral, philosophical, political.financial, and legal implications. We have provided informa-tion about the legal implications. This information, howev-er. must be considered tentative since any definitivediscusskm of the legal implicatkms of affirmative action isimpossible. Furtherrnore. institutions of higher educationultimately must deal with the other implications themselves.taking into account the collective needs and conscience ofall of its constituents.

118

1 3

THE LEGAL IMPLICATIONS OF PEER REVIEW

Consider this scenario:You believe you have been the victim of gender dis-crimination in your institution's decision not to pro-mote you to full pmfessor. You think that some of themembers on the promotion and tenure committeewere biased against members of your gender, and youwant to know how they voted. You consider filing aclaim with the HOC alleging a Title \II violation.How likely is it that vou will obtain the informationthat you seek?

In this section, we discuss some of the legal issues associ-ated with peer review, specifically the disclosure of confi-dential Nsn,-review materials: the liability of administratorsand faculty members involved in evaluating candidates forreappointment. promt tion. or tenure: and the use of studentevaluations and other evaluation tools by peer-review COM-minces.

Colleges and universities rely on the judgments of internaland external peers to assess the quality of a faculty mem-bees scholarship. teaching, and service and to recommendwhether reappointment, promotion, or tenure should begranted (Kaplin and Lee 1995). Until recently faculty mem-bers usually were not given access to these evaluations, andevaluators were assured of confidentiality. In fact, someevaluators refused to provide candid evaluations unless theywere promised confidentiality. During the last 10 wars,institutions have been compelled by courts to disclose peer-review materials in the processing of discrimination com-plaints (Brown and Kurland 1993). Faculty members andadministrators involved in the evaluation of unsuccessfulcandidates for reappointment, promotion, or tenure havebeen asked to provide depositions. answer intern)gatories,or surrender informatkm within their control (Kaplin andLee 1995).

In 1990, the Supreme Court rejected a claim to an institu-tional privilege from disclosure of confidential peer-reviewmaterials. Prior to 1990, the federal and state courts hadbeen divkled regarding this issue. Today, courts generallyagree that faculty members charging discriminatkm can haveaccess to all documentation in their files and perhaps inother faculty members files as well if the information is

In 1990, theSupreme Courtrejected aclaim to aninstitutionalprivilege fromdisclosure ofconfidentialpeer-reviewmaterials.

Tenure. Promonon, and Realpnu1nen1 119

1 3 ,J

relevant to their complaints (Brown and Kurland 1993). TheAAUP also has called for disclosure of this material.

In any litigation, each party is allowed to prepare for trialby obtaining information about the other party's case. Thisinformation-gathering process is called "discovery."Through discovery, each party can obtain informationthrough depositions, written interrogatories. production ofdocuments, physical or mental examinations, and the like.In a federal discrimination lawsuit, the faculty member alleg-ing discrimination can discover any "nonprivileged" materialthat is relevemt to the charges, and this may include peer-review materials. The courts and the Federal Rules.ofEvidence, which govern discovery in federal litigation, donot t'avor privileges that keep information confideritial. Butcourts have the authority to recognize privileges on a case-by-case basis (Baglione 1987).

In Title VII cases, the EEOC may be investigating thematter as well. The EEOC's discovery rights are broaderthan those of individual faculty members. This is becauseCongress wanted the EEOC to have extensive access to evi-dence to eradicate employment discrimination (Barrow1990). Courts also have construed the relevancy require-ment very broadly in EEOC investigations. thereby allowingaccess to a great deal of peer-review materials which mightprmide evidence of discrimination (Baglione 1987). If aninstitution refuses to disclose the peer-review materials. theEEOC has the authority to issue a subpoena and to sue theinstitution in federal court to enforce the subpoena (Barrow1990).

Arguments For and AgainstDisclosure of Peer-Review MaterialsFaculty members challenging a negative empk)yment deci-sion and the EEOC investigating charges of discriminationmust rely on access to confidential peer-review materials,prompting institutions to argue that this information must beprivileged against disclosure to ensure the integrity of thepeer-review system ( Baglione 1987). lnsiitutions often claimthat maintaining the confidentiality of peer-review evalua-tions is essential because the pr()motion and tenure pmcessneeds candid evaluations from reviewers, and this can onlyIx. accomplished when evaluators are assured of confiden-tiality.

120

1 34

In addition to maintaining the integrity of the peer-reviewsystem, institutions have requested a qualified privilege tokeep peer-review materials confidential on the grounds thatliberal discovery rules allow faculty members or the EEOC todemand production of too many documents relating to reap-pointment, promotion, or tenure evaluations, and this pro-duction will have disruptive and burdensome effects oninstitutions (Bag lione 1987). Furthermore, when a facultymember seeks access to the personnel files of other facultymembers for comparison, the disclosure may cause "badblood" in the department, embarrassment to others, anddamage the reputations of faculty members not involved inthe lawsuit (see Chronicle qf Higher Education, Feb. 3,1995).

Colleges and universities also have claimed a privilegeprotecting the confidentiality of peer-review materials onconstitutional grounds. Institutions have argued that thepeer-review system serves important academic freedominterests. The Supreme Court recognized the FirstAmendment right of institutional academic freedom inSweezy ts. New Hampshire (1957) and Keyishian vs. Boardof Regents ( 1967). Academic freedom includes the right ofcolleges and universities to decide, on academic grounds,who may teach. The process of deciding who may teachnecessarily requires the reappointment, promotion, or tenureprocess, and to maintain the integrity of this process, confi-dentiality is needed to ensure that evaluators are candid(Olswang and Lee 1992; School Law Reporter, December1994). Confidential peer review, therefore, serves importantacademic freedom interests.

There also are arguments in favor of disclosing peer-review materials. Faculty members who believe they havebee, discriminated against are able to determine whetherthey have a legal claim if they have access to this informa-tion. Also, evaluators should be held accountable to theinstitution and to the faculty members involved by disclosingtheir evaluations (see Coates 1995). Faculty members alsoshould have the same rights as many emplciyees in rumacad-emic public organizations, who have the right in a numberor states to inspect their personnel records (sec Olswangand Lee 1992). Furthermore, disckising this information tothe faculty member on request actually may avoid potentiallawsuits, since the faculty member may find that the reasons

Thnure. Promotion, and Wappointment 121

for the negative decision are valid. Finally, disclosure f thisinformation forces evaluators to be honest and forthright(Coates 1995). and encourages them to base their decisionsupon specific examples to avoid the possibility of beingcharged with discrimination.

So Me scholars also have questioned the need (or anacademic freedom privilege (see DeLano 1987). Thesescholars have contended that the academic freedom todecide who may teach means only that institutions maydetermine who may teach CM academic grounds. A deci-skm based upon discrimination or MC that censors freespeech is not entitled to constitutional protection, and theonly way to determine whether the institution's decision is1)ased upon academic grounds is to examine the materialsused to make the decisions. A privilege keeping peer-review materials confidential may give colleges and universi-ties more than the freedom to decide who may teach: it alsogives them the freedom to base their decisions upon anygrounds, including discrimination or political or religiousaffiliation and (Aher illegal grounds.

Despite the arguments in favor (If protecting pecfrreviewmaterials frimt being discl()sed to faculty members challeng-ing negative reappointment, promotion. or tenure decisions,the current judicial trend allows faculty members access tothis information. especially in employment-discriminationlitigatkm.

Peer Review and the Courts A Short HistoryIn 1990, the Supreme Court decided that at least as far theEEOC was concerned institutions of higher education couldnot claim a privilege of confidentiality in discrimination cas-es. In l'nn.ercity I'ennsvIrania i. E.E.O.C. (1990), theSupreme Court upheld the EEOC's subpoena of variouspeer-review materials. Prior to this case, courts were divid-ed on the issue of whether academic institutions enjoyed aprivilege protecting confidential peer evaluations from dis-closure. "I lie Supreme Court made it clear that such a privi-lege could not be available to frustrate the ELOCs obligationto eradicate discrimination in faculty employment. Today.courts seem fairly consistent in giving access to peer-reviewmateria IN in cases alleging discrimination (ilendrickson1)91).

lietbre the 1 'nfrersily of Pen nsyhmia case, federal courts

I22

1 3 ti

de:lit with requests for disclosure of peer-review materialshy faculty metnbers or the FEOC in three ways: They grant-ed ;i qualified privilege protecting such materials; they bal-allied the academic freedom and educational-excellenceinterests against the need to fairly investigate charges of(list rinlination; or they rejected anv institutional argument in1:1( n* of dtsLlosure. Following is a summary Of some of theinn( II i. a l's tlejlinn ith this issue.

The first major case dealing with the disclosure of peer-re fe materials v(as In Rf.4 Duman (1981), which rejectedNIA h pri \ ilege ln this ( ase. James Dinnan, a member ofthe (A illege 331 FdLlcatiun's Pi-4)1111)0(m Review Committee atthe I m\ersit\ ()I ( ict Irgia. refused to answer questionsnig:tiding him he lifted on a pf(nnotion application.)inn.ui appealed his con\ k lion, claiming an academicruedom privilege' The (:ourt of Appeals for the Fifth

held that ni such privilege existed stating that.((,uleink fieedt tin. though imp(mant, cannot cause iftherinterests C eradk ming emplifyment discrimination or freedom(if speech. fiir example) to he frustrated.

In Gnti. t is 1iHard e!/' ligher Mucaliun. City q..Vew York1082t. the Omni (II Appeals for the Second Circuit held that

the (lei. isk in of w hether to disclose confidential peer-re\ iewmatenals requires a balancing of competing interests. AnAlm ui Amerk:111 instill( tor at LaGuardia Community(:pileges business di\ ision denied promotion to assistantplithis.a,r 4 ill se\ eral )(.(.asions asked Ilk court to compeltwi 3 inellibeis 4 41 the personnel cc finillittee (One of whom\ as the hair ot his department) to disclose how they votedin his ( ase I tile faculty inemhers claimed an academicI [cud. 4111 pro, liege) (a inceined that Gray would not he ableto pio\ 3. intentk mal discrimination without knowing howthese Luultv members voted. the court adopted the AAllYssidinion of a lulan( ing test, taking into mnsideration factorsnu hiding \\ holler the candidate reed\ ed a meaningfulstatement of reason, from the peer-review committee and\\ as at lorded pioricr intramural grievance procedures. The

11111 I Wile\ this solution strunk an appropriate haknicebetween a( adenik freedom and an indi\ kluok right ill fair

01 III, Illtht ti .1 \ 11" hill' liii 1%11 Ii tilt Ill' 11111,CliI. hi, 1,, cut 111,.

I., ttuoild cutt. 00-(Lis iii cillent

Reappu inn Held

I 312i

consideration on the other. In this case, the court tipped thebalance toward discoveiy.

Although the court in Gray held in favor of disclosure, itindicated that if the institution provided an unsuccessfultenure candidate with a meaningful statement of reasons,that factor would weigh heavily in balancing whether toprotect the committee members' votes and other peer-review materials from disclosure. In E.E.O.C. vs. Universityof Notre Dame Du Lac (1983), the Court of Appeals for theSeventh Circuit took a stronger stance in protecting peer-review material from disclosure by holding that colleges anduniversities had a qualified privilege against disclosure ofpeer-review materials. The EEOC had attempted to obtainpeer-review materials in a race-discrimination claim. Thecourt stressed the importance of confidentiality in the peer-review process and held that before producing the files tothe EEOC, the university should be permitted to redact allidentifying information, and the release of further informa-tion must be based on a finding of "compelling need."

The Court of Appeals for the Third Circuit, however,rejected the qualified-privilege argument and the balancingtest. In E.E.O.C. vs. Franklin mul Marchall College(1985),the EEOC sought enforcement of a subpoena for a numberof documents in a national-origin discrimination claim,including tenure-recommendation forms prepared by facultymembers; annual evaluations; letters of reference; evalua-tions of the faculty member's publications by outsideexperts; and all notes, letters, memoranda, and materialsconsidered (luring the tenure decision. The court, acknowl-edging the potential burden on the peer-review process,held in favor of the EEOC, noting that since Congress didnot exempt academic institutions from Title \ill's prohibitionagainst discrimination, they were subject to EEOC investiga-tions.

Courts appeared to move away from granting a qualifiedprivilege against discl()sure of peer-review materials. Infacksmi vs. Harvard University(1986)*, the court held thefaculty member was not entitled to discover the identities ofevaluators without showing a "particularized need" sufficientto overcome the university's qualified academic freedom

'This case finally was cleckled in 1990 and was discussed in Section Four.

124

l 3

privilege, nor was she entitled to discover informationregarding the selection of students and nonfaculty employ-ees or the tenure decisions of faculty members at otherschools in the university. The court held, however, that shewas entitled to additional information not found in the affir-mative-action reports, the information r, ardin:4 tenure can-didates for the past 10 years, including the tenure files ofmen granted tenure during that period (with the namesredacted), and the records of complaints by business-schoolfaculty members.

The Jackson court acknowledged the existence of thequalified privilege, hut such a privilege was rejected by aNew Jersey Court in Dixon vs. Rutgers (1987). Dixon, anAfrican-American female assistant professor in the College ofArts and Sciences, xvas denied tenure because of what sheclaimed was gender discrimination. Dixon requested infor-mation contained in her promotion and tenure file. Thecourt held that academic freedom privilege did not protectthe confidentiality of material contained in promotion pack-ets of faculty members of the state university in the face of agender-discrimination challenge. In Orbovich vs. Macalesiercollege (1988), a court ordered the disclosure of the compar-ative evidence (the personnel files of other faculty members)because that evidence is relevant in a case alleging genderdiscrimination and rejected the college's argument that theproduction of this material was too burdensome, holdingthat the college must prove that the burden was "unreason-able." Nevertheless, the court recognized the confidentialnature of the personnel files and issued a protective orderthat barred further disclosure without court approval.

As these cases indicate, the federal courts were not inagreement regarding the disclosure of peer-review materials.Some scholars argued that the lack of harmony among thecourts created problems for academic' decisionmakers wholacked the security of assured confidentiality before makingcandid appraisals (see Partain 1987). This lack of agreementand the ensuing confusion for the institutions, faculty mem-bers alleging discrimination, and the EEOC led the SupremeCourt to accept the appeal of I:Him:city qf Pennsylvania,which had been ordered by the lower federal courts to turnover peer-review materials to the EEOC in a complaint alkg-ing gender and national-origin discrimination.

Tenure, Promotion, and Reappointment /25

3

University of Pennsylvania vs. E.E.O.0 (1990)In University qt. Pennsylvania, the university asked theSupreme Court to hold that academic institutions had a qual-ified privilege against disclosure of confidential peer-reviewmaterials. Although the privilege was specifically requestedin Title VII cases, it probably also would apply to other situ-ations in which faculty members were denied reappoint-ment, promotion, or tenure. including violations of academicfreedom, breach of contract, and other such litigation (seeRabban 1993)..

In 1985, the University of Pennsylvania denied tenure toRosalie Tung. an associate professor in the Wharton Schoolof Business. Tung filed a Title VII discrimination claim withthe HOC, alleging gender and national-origin discrimina-tion. She stated in her charge that she had been sexuallyharassed by her department chairman and that after sheinsisted their relationship remain professional, he submitteda negative letter to the university's personnel committee.She also claimed that her qualifications were -equal to orbetter than" those of five named male faculty members whohad received more favorable treatment. Tung noted thatfaculty members in her department had recommended herfor tenure: that she had been given no reason for the deci-sion against her; and that she had discovered that the per-sonnel committee attempted to justify its decision "on theground that the Wharton School is not interested in China-related research," which she claimed meant that the schooldid not want a "Chinese-American, Oriental woman in theirschool" (p.

The HOC undertook an investigation into the charge andrequested a variety of information from the university.When the university refused to provide some of the infmma-non. the EEOC issued a subpoena seeking, among otherelements. Tung's tenure-review file and the tenure files ofthe five male faculty members identified in the charge. Theuniversity contended that certain items in the subpoenawere "confklential peer-review information," specifically,ccnifidential letters written by Tung's evaluators; the chair-person's letter of evaluation; documents reflecting the inter-nal deliberations of the tenure conunittees; and comparableportions of the tenure-review files of the five males. Whenthe university refused to comply with the subpoena. theHOC sued to enforce its subpoena. The lower federal

126

courts ordered the university to comply with the subpoena,and the Supreme Court accepted the university's appeal.

The university contended that the EEOC should herequired to seek a judicial finding of "particularized necessi-ty," beyond a showing of mere relevance, before the peer-review materials are disclosed (essentially what the court inUniversity qf Notre Dame Do Lac119831 had decided). Tosupport this request, the university raised essentially twoclaims. First, it urged the court to recognize a qualifiedcommon-law privilege against disclosure of confidentialpeer-review materials. This assertion was grounded in theFederal Rules of Evidence permitting courts to recognizeprivileges on a case-by-case basis. The university claimedthat this privilege was necessary to protect the integrity ofthe peer-review process, which in turn is central to theproper functioning of colleges and universities. TheSupreme Court refused to recognize such a privilegebecause Congress had considered these concerns but didnot provide the privilege. By extending Title VII to institu-tions of higher educatkm and providing broad EEOC sub-poena powers, the court reasoned. Congress did not see fitto create a privilege for peer-review materials. Furthermore,to enable the EEOC to make informed decisions at eachstage of the enforcement process, Title VII confers a broadright of access to relevant peer-review materials. At thesame time, Title VII had provisions preventing the EEOCfrom making confidenfial materials public. The SupremeCourt noted that:

disclosom of peer-review materials will be necessary inorder fOr the lEEOCI to determine whether illegal discrimi-nation has taken place. Indeed. if there is a "smokinggun" to be/011U(l that demonstrates discrimination intenure decisions, it is likely to be locket! away in peer-reviewliles ( p. 58.t

Imposing a requirement on the EEOC that it demonstrate aspecific reason for disch)sure beyond a showing of mererelevance, the court reasoned, would place a substantiallitigation-producing obstacle in the way of the EEOC'sefforts to investigate a n d remedy alleged discrimination: auniversity laced with disclosure might use the privilege tofrustrate the EEOC's missum. The Supreme Ccmrt was reluc-

Tenure. l'ronionon. (nal Reappointment 127

tant to place a potent weapon in the hands of employerswho have no interest in complying voluntarily with the actand who wish instead to delay investigations by the EEOC.

The Supreme Court also rejected the University ofPennsylvania's second claim: that it had a First Amendmentright of academic freedom against wholesale disclosure ofthe contested documents. The university contended that itexercises the right of determining, on academic grounds,who may teach through the process of awarding ien6:-.2The peer-review process is the most important element ofthe tenure system, and it requires cardid and detailed evalu-ations from internal and external reviewers. Because evalu-ators traditionally have been provided with assurances ofconfidentiality to ensure candor, requiring disclosure ofpeer-review evaluations without compelling reasons wouldundermine the tenure process, thereby infringing onacademic freedom. Furthermore, the university claimed thatdisclosure of this information would result in a "chillingeffect" on candid evaluations and, as a result, the quality ofthe evaluations would decline and tenure committees nolonger would be able to rely on them. Disclosure of peer-review materials also will lead to divisiveness and tensionamong the faculty, placing a strain on faculty relations andimpairing the "free exchange of ideas" that is the "hallmarkof academic freedom" (pp. 585-6).

The Supreme Court disagreed. First, it believed that theuniversity's argument was misplaced. The cases ensuring aFirst Amendment right to academic freedom involved gov-ernmental attempts to control or direct the content of thespeech engaged in by the university or those affiliated withit. The EEOC was not attempting to regulate the content ofthe university's speech; it was not providing criteria the uni-versity must use in selecting faculty members, nor was itpreventing the university from using any criteria it wished,except those prohibited by Title VII. The court determinedthat the university's claim "did not fit neatly within any rightof academic freedom," and what the university sought wasan expanded right of academic freedom.

The court also rejected the university's contentions regard-ing the impact of disclosure on the peer-review process,referring to these arguments as "extremely attenuated,""remote," and "speculative." The court, in other wwds, wasnot convinced that disclosure would undermine academic

128

1 4 -) BEST COPY AVAILABLE

freedom or the peer-review process, noting that confidentiali-ty is not the norm in all peer-review systems, and that somedisclosure also would take place if the university's requestwas adopted. Furthermore, the court was not convinced thatacademicians would be less candid or honest in evaluatingcandidates for reappointment, promotion, or tenure:

Finally, we are not so ready as /the university/ seems to beto assume the worst about those in the academic commu-nity. Although it is possible that some evaluators maybecome less candid as the possibility qf disdosure increas-es, others may simply ground their evaluations in specificexainples and illustrations in order to deflect potentialclaims of bias or iiiyairness. Not all academics will hesi-tate to stand up and he counted when they evaluate theirpeers( p. 588).

It can be argued that this ruling is limited to the specificissue before the court: whether the EEOC in a Title VIIinvestigation was required to show a "particularized necessi-ty" to have access to tenure-review files rather than merelydemonstrating that the information was "relevant" to itsinvestigation (Olswang and Lee 1992; School Law Rej)w-ter,December 1994, p. 2). Furthermore, few faculty membersactually will find in these materials the type of informationthey need to conclusively prove discrimination, and courtsare highly deferential to academic decisions anyway, espe-cially if the peer-review committees voted against reappoint-ment, promotion, or tenure (Olswang and Lee 1992).

Nevertheless, the lIniversity qf Pennylvania case isimportant because it appears to permit access to confidentialpeer-review materials upon the filing of an EEOC complaint.and it gives the EEOC the right to discover confidentialinformation contained in other faculty members' files.Clearly, colleges and universities no longer can assure peerevaluators total confidentiality, and they shoukl guaranteethat these evaluations are N.N;e I 1 documented and supportedby ample evidence (Olswang and Lee 1992). Furthermore,even though this case involved an EEOC subpoena, facultyplaintiffs also are likely to be entitled to peer-review infor-matk)n, including letters from outside evaluators, writtenrecommendations of departmental or other committees, andother relevant informatkm (Kaplin and Lee 1995).

....colleges anduniversities nolonger canassure peerevaluatorstotalconfidentiality,and theyshouldguarantee thattheseevaluations arewelldocumentedand supportedby ampleevidence.

Thnure. Promotion. and Realpoiritment 129p

This case also is indicative of the courts' belief that theinterest in preventing discrimination outweighs the institu-tions' interests in keeping peer-review information confiden-tial. Many scholars still believe that disclosure ofconfidential peer-review materials will prevent candid evalu-ations of candidates, an argument the Supreme Court reject-ed by indicating that potential disclosure will only forceevaluators to provide specific examples in support of theirrecommendations. Regardless, courts are reluctant to privi-lege this information in discrimination cases, believing that ifany evidence of discrimination exists, it is likely to be foundin peer-review materials. Research indicates, however, thatin the few cases in which faculty members prevailed in dis-crimination cases, the information contained in peer-reviewfiles was not vital to the resolution of the cases (Olswangand Lee 1992). Furthermore, the research does not supportthe perception that granting greater access to peer-reviewmaterials will significantly increase the tenure rates at manycolleges and universities (Bednash 1991).

Some scholars believe the University of Pennsylvania'sacademic freedom claim, if accepted, would have actuallyhindered academic freedom. Frost contended that the uni-versity's insistence on a confidential peer-review processactually works against academic freedom (1991). Academicfreedom. Frost argued, was devekTed within the context ofindividual rights and stressed the importance of open andfree inquiry, and it was:

convoluted to structure the tenure process so as to restrictopen debate el d on the assumption that an Openprocess might reduce candor and then use academicfreedom doctrine to support that /Qr.; it-. A confidentialpeer-review process makes open debate impossible becauseit restricts relevant infOrniation, and thus five aye-Intro,.to et limited group ef scholars. A more open procedure.with participants vpressing and supporting responsibleopinions, would seem to be more in harmony with thescholarly mission ofthe totirmity(p. 3.t9).

Access to committee deliberations and actual votesFaculty members have been gi en access to prcImotion andtenure committee deliberati(ms and the actual votes of

I.30 144

reviewers. In Re Dinnan (1981) dealt with this very issue,and the court indicated very little patience for an argumentclaiming that disclosure of a promotion and tenure votewould undermine the peer-review process. and for thosewho claim such a privilege:

No one compelled Professor Dinnan to take part in thetenure decision process. Persons occupying positions qfresponsibility. like Dinnan, Oen must make difficultdecisions. Me consequence o f such responsibility is thatoccasionally the decisionmaker will be called upon toexplain his actions. In such a case, he must have thecourage to stand up and publicly account for his decision.If that means that a few weak-willed individuals will bedeterred from serving in positions ql public trust, so be it:society is better off without their services. lf the decision-maker has acted for legitimate reasons, he has nothing tofrar. We find nothing heroic or noble about IDinnanSIposition; we see only an attempt to avoid responsibility forhis actions. If IDinnanl was unwilling to accept responsi-bilityjbr his actions, be should never haiv taken part inthe tenure decision-making process. Houvver once heaccepted such a role of public trust. he subjected himself toexplaining to the public and wry afli?cted individual hisdecisions and the reasons behind them (p. -132).

Some courts have denied access to committee deliberationsor the actual votes of conmlittee members. For example, inDesimone v.r. Skidmore College ( 1987), the court refused togrant the faculty member access to committee deliberationsbecause the committee twice had ruled in the Faculty mem-ber's favor, and it was the dean who denied the facultymember tenure. Despite Desimone, courts have been will-ing to grant access to these materials because they are con-sidered necessary to sustain charges of discrimination. InGray( 1982), discussed previously, the court determined thatdisc losure of committee members' v(Aes was necessary inlight of the institutkm's refusal to provide meaningful rea-sons for a negative prom()tion decision. In the Franklinand Marshall College ( 1985) case, the court granted access tothis material citing In Re Dinnan as persuasive. In jacksnr,(1986). the court granted access to the deliberations of the

rentire, Prolli011(01, and Rea/041111;1CW

1.45

tenure committee. And in University of Pennsylvania (1990),the Supreme. Court indicated that such information shouldhe available to the EEOC if it determines it to be relevant.

Committee members who refuse to disclose their voteswhen ordered by a court face the same consequences thatDinnan faced: a contempt citation, fines, and jail time. In aninteresting note, despite the ruling in the case Dinnan stillrefused to disclose how he voted, and the court ordered himjailed; he arrived at the jail dressed in full academic regalia(Kaplin and Lee 1995).

Alternatives to full disclosureThe Federal Rules of Evidence also permit courts to issueprotective orders that protect a party from annoyance,embarrassment, oppression, or undue burden or expense(Barrow 1990). Even if the institution must disclose peer-review information, it may seek a court order allowing limit-ed disclosure. A protective order, for example, may allowthe institution to redact the files or to limit access to thoseindividuals directly involved in the litigation (Barrow 1990;DeLano 1987; Partain 1987; Weeks 1990). A protective orderallows faculty members a fair opportunity to prove theircharges but not be too broad.

The University qf Pennsylvania case did not address theissue of whether identifying information can be redacted.Colleges and universities may be able to redact the namesand any identifying information of peer reviewers beforepermitting the EEOC access to the files. Therefore, a defacto qualified privilege still may exist (Frost 1991).Although, as Kaplin and Lee pointed out, the court's lan-guage upholding the EEOC's need for "relevant" informationsuggests that if the EEOC asserts that the identifying infor-mation is relevant, access would have to be provided (1995).

Redactkm might serve the purposes of all parties in adiscrimination litigation (Barrow 1990): The faculty memberand the EEOC would have access to the evaluations, and theinstitution still would protect the identities of the reviewers,maintaining some level of confidentiality. Furthermore, onecan argue that the identities of reviewers are irrelevant in adiscrimination lawsuit. The identities of external reviewersmay be particularly irrelevant because even if there is proofof discrimination in these evaluations, it is the institution.

132

1 4 t;

not the reviewers, who actually make the decision (seeBaglione 1987).

Redaction, though arguably preferable to full disclosure.does not solve all the problems. As Barrow indicated, facul-ty members in small departments probably would identifythe evaluator by the writing style, handwriting, or print typeof a document (1990). Redaction: therefore. may not protectthe identity of reviewers in all cases. Furthermore, collegesand universities may redact more than the identities ofreviewers, making discrimination more difficult to prove.On occasion the EEOC may be able to argue that redactionis useless; this is particularly true if the faculty memberbelieves that specific people intentionally discriminatedagainst him or her, and the faculty member's attorney wishesto interrogate them.

Courts are reluctant to allow institutions to protect peer-review information when allegations of discrimination aremade. Since the Supreme Court has made it clear that noconlmon-law or academic freedom privilege exists, an insti-tution's only recourse may be a state law protecting thedisclosure of this kind of information. As we will discuss inthe next section, some states provide some protection, hutmany states do not. Institutions wishing to avoid disclosureof confidential peer-review materials may have to lobbytheir ,state legislators for statutory protection (Barrow 1990).

State Law and the Peer-Review SystemFor many public institutions (and some private ones aswell), University qf Pennsylvania has little significance sincetheir states' laws have been interpreted to permit access topersonnel files. Administrators and faculty membersinvolved in the reappointment, promotion, and tenureprocess shoukl understand the extent to which their statespr()tect confidential peer-review materials. Many states haveemployee "right-to-know" laws which grant employees theright to inspect their personnel files. These laws. hoWever.usually exempt "reference letters." Many states also haveOpen records laws (often referred to as "sunshine laws")which permit access to public documents unless the docu-ments are exempted from disclosure. One exemption mightbe pers(mal information which, if disck)sed, would vican employee's right to privacy (see Olswang and Lee 1992).

PrOnudiffil. and Reappointment

Employee right-to-know laws

Employee right-to-know laws have been used successfully togain access to a faculty member's personnel file. For exam-ple, the state of Pennsylvania's law guaranteeing facultymembers the right to inspect their personnel files was usedsuccessfully in two 1988 cases to gain access to peer-reviewmaterials, In Pennsylvania State 1Tniverqty vs.Cbmmonwealth of Pennsylvania. Department of Labor andIndustry. Bureau of Labor Standards ( 1988), the court heldthat the Pennsylvania Personnel Files Act requiring the dis-closure of "performance evaluations" includes tenurereports. Although the law exempted "letters of reference,"the court determined that tenure reviews are performanceevaluations. Also in 144yette College vs. Commonwealth of'Pennsylvania. Department of Labor and Industry, Bureau ofLabor Standards ( 1988), the court determined that a facultymember denied tenure was entitled not only to his tenurefile but also to the letters by externa. scholars evaluating amanuscript authored by the faculty member. The bureaudetermined that these materials were performance evalua-tions. The court upheld that bureau's determination andrejected the college's arguments that the tenure reports andthe letters of evaluation were "letters of reference" and thusexempted from the Personnel Files Act.

fn other states, these casts may be decided differently.For example, in Aluskovitz vs. Lubbers (1990). a Michigancourt exempted some peer evaluations from disclosure, ml-ing that a letter from a dean to the provost regarding a facul-ty member's performance was exempt from the state'sright-to-know act (Kaplin and Lee 1995). The Court charac-terized the letter as a "staff planning document," one of theexemptions to the law. It also ruled that the names of peo-ple who prepared the evaluations, and other identifyinginformation, were exempt from the law as "employee refer-ences supplied to the employer" and could be redacted fromthe documents submitted to the faculty member (Kaplin andLee, p. 336).

In California, faculty members would have a more diffi-cult time gaining access to their personnel files. In Scbay'is. Regents of tbe lInivemity Qf Ca 1116 r n ia (1991), six facultymembers denied tenure and promotion and the AmericanFederation of "l'eachers sued the t iniversity of Calitiwniaclaiming that the state's Education Code gave faculty mem-

134

1 4 8

bers complete access to their personnel files. The court heldthat given the University of California's constitutional auton-omy, the state's right-to-know law was inapplicable. Thecourt also held that faculty members involved in the peer-review process had a state constitutional right to privacy --in effect, the right to privacy protected peer-review materialsfrom disclosure. Furthermore, the court was persuaded thatthe faculty members were provided xxith a comprehensivesummary of the peer-review material.

As indicated in Schad; a state's right-to-privacy laws mayprotect peer-review materials from disclosure, but this rightis not absolute. In Board Ql'Irustees vs. Superior Court(1981), the court denied a former Stanford professor'srequest to inspect the personnel records of certain facultymembers on the ground that the professor had not demon-strated sufficient relevance or necessity outweighing thefaculty members constitutional guarantee of privacy. Thecourt indicated, however, that legitimate claims of discrimi-nation or violations of free speech may provide the "necessi-ty" outweighing other faculty members' right to privacy.

Allegations of defamation or other torts do not outweighthe right to privacy. In Kahn vs. Superior (burl (jibe

qf Santa Clara (1987), Ivor Davies was denied theMcDonnell Chair of East European History by the historydepartment at Stanford University, even though a searchcommittee had recommended him for the position. Theprovost agreed to provide Davies with a written summary ofthe grounds for the decision, but Davies filed a defamationlawsuit against Kahn (who was a department faculty mem-ber), other faculty members of the history department, andunnamed people who submitted references to the commit-tee. Davies sought to have Kahn and others disclose howthey voted, the motives for the votes, and the contents ofcomments made during a faculty meeting (during whichDavies claimed he was &Fame(l). The court found thatCalifornia's right to privacy protected Kahn and the peer-review files from discovery. California's right to privacy, thecourt held, protects against both public and private inva-sions of privacy, hut it is qualified courts will not enforcethe right against compelling state interests that outweigh theright to privacy (torts such as defamation are not compellingenough, but violations of constitutional or civil rights mightbe). The court also was convinced that Davies was suffi-

Tenure, Promotion, and Reammintment /35

14

ciently provided with a comprehensive summary of the rea-sons for the denial.

Employee right-to-know laws, therefore, guarantee facultymembers in some states access to their personnel records,which may contain confidential peer-review materials. Insome states, ho,vever. the right to privacy (of peer review-ers) may prevent faculty members challenging a negativereappointment, promotion, or tenure decision from havingaccess to confidential peer-review materials. But even inthese states, the right to privacy may be outweighed bylegitimate claims of constitutional or civil rights. In all cases,institutions should provide faculty members with a compre-hensive summary of the reasons for the decision.

State sunshine lawsFaculty members also have used state open-records laws togain access not only to their files but to the files of otherfaculty members to determine whether they were trv,itedfairly in an employment decision. Some state courts haveinterpreted these statutes as permitting access to the sub-stance of the peer-review decision, although the names andother identifying information of the reviewers may be pro-tected from disclosure in some states (Olswang and Lee1992).

In Slate Ev Rd. James ts. Ohio Slate l'nipersily (1994). theSupreme Court of Ohio held that materials contained in pro-motion and tenure files maintained by the university arepublic records subject to disclosure under the Ohio PublicRecords Act. William Calvin James, an assistant prefessor inthe department of geological sciences, sought access to andcopies of records contained in promotion and tenure filesmaintained by the university. The dean of the college ofmath and physical sciences offered James access to a redact-ed version of James' own promotion and tenure file butrefused him access to any other faculty member's file. Theclean also refused to provide James with access to the chair-person's evaluatkm letter and any infmmation that mightreveal the identity of persons evaluating James' work. Jamessued to compel disck)sure of the disputed infwmation.

The university claimed that the records should be redact-ed to protect the evaluators names, and that disclosurewoukl substantially infringe on the university's constitution-ally protected right to academic freedom. The court rejected

the university's academic freedom argument essentially forthe same reasons that the U.S. Supreme Court did inUniversity (y. Pennsybania; specifically, the court determinedthat the issue was not whether the university is permitted todecide on academic grounds who receives promotion andtenure but whether the records of those decisions are public.The ccnirt rejected the argument that the integrity of thepeer-review system would be undermined by a facultymember's access to personnel files. The court noted thatscholars routinely evaluate each other's work in such publicforums as conferences and journals, but even if the system isundermined by disclosure of peer-review materials, this wasa matter for the legislature to correct, not the courts. Thecoun aku noted:

hi ac fditi(m. it is imnic that the university here armws thatacademic livedom is challenged hy the disclosure (y. thedocuments. It seems the antithesis qf academic freedom tomaintain secret files upon which promotion and tenuredecisimts ae made, unatailable eivn to the perwm who isthe Stayed (y. the etaluation.

The James decisk in is important. The court was strongly inla or of disclosure of promotion and tenure files, and thishas been the trend in recent years. This case also may havegranted more rights to faculty members in Ohio than thoserequired bv the I .niversity (ye Pennsylvania case. Actually,this case is striking because it allows public access to publicuniversity files tany<ole can review these files because theyare ;I\ ailable under the state's sunshine act). Furthermore,nr it oily dties this case Inild that faculty members are enti-tled ni see unredac ted versions of their own promoticm andtenure files tan issue the Supreme C( murt did not address),hut it also suggests that they may be entitled to see the filesof their c olleagues.as well (School taw Reporter, December199i ). Iames also highlights the "delicate balancing thatimist be kept between the interests of individual professorsand the general public in disclosure of public documentsand the interests of universities in ensuring the integrity of'theit on ow Hi( HI and tenure proi.esses" (p. 3). Whether oth-el states follow the reasoning uf the ohio Supreme Court. ofit Hirse. remains to be seen.

A (Alegi: or university facing either a request for disclo-

/contr.. I'minolum. awl Reappuitilment

1 5

137

sure of peer-review materials or a request to keep thosedocuments confidential should review certain internal docu-ments prior to acting on the request. For example, manyfaculty collective-bargaining agreements may contain provi-

sions relating to personnel records and evaluations. In addi-tion, the internal policies, rules, and regulations of theinstitution may set forth obligations with regard to the reten-tion and disclosure of personnel records.

The current trend in courts is toward disclosure. Even theAAUP, which previously had contended that a qualified privi-lege can be invoked on a balancing of factors, includingaccess to a statement of meaningful reasons and review pro-cedures, issued a report calling for broad disclosure in litiga-

tion as well as internal reviews. The 1992 report, "Access toFaculty Personnel Files," reaches the following conclusions:

1. Faculty members should have access to their own files,including unredacted letters, at all times:

2. Faculty members should be afforded access upon request

to general information about other faculty members suchas is normally contained in a curriculum vitae;

3. Files of a faculty complainant and of other faculty mem-bers, fm purposes of comparison, should be available inunredacted form to faculty appeals committees to theextent such committees deem the information relevantand necessary to the fair disposition of the case before

them; and4. A faculty appeals committee should make available to the

aggrieved fitculty member, in unredacted form and with-out prejudging the merits of the case, all materials itdeems relevant to the complaint, including personnel files

of other faculty members, having due regard for the pri-vacy of those who are not parties to the complaint(Academe, July/August 1992).

Siudent Evaluations and Other EvaluationTools Used by Peer-Review CommitteesReappointment, promoticm, and tenure decisions usually arebased upon the quality of a candidate's scholarship, service,and teaching, which is determined largely throughjudgments of many people. Many negative tenure decision:4ore based on deficient scholarship, which often is measuredin terms of the number and quality of publications. Some

138 15 A,

negative decisions are based upon inadequate service com-mitments. Although some aspect of the service criteria (thenumber of commitments, for example) can be quantified,this also can be subjective (whether service on an institu-tionwide committee is more important than on a departmentcommittee, for example).

Poor teaching also is a common basis for a negative deci-sion probably more so in recent years. But what consti-tutes effective or ineffective teaching is highly subjective aswell. Institutions, however, often attempt to measure teach-ing through observations, portfolios, or student evaluations(see Centra 1993 for a discussion of the research on thevalidity, reliability, and utility of these measures). Studentevaluations, in particular. increasingly are being used intenure and promotion. The ease of obtaining these data andthe extensive research supporting their use have, no doubt,contributed to their acceptance.

Despite the subjectivity of measuring the quality of afaculty member's scholarship, service, and teaching accom-plishments, courts will rarely, if ever, question the appropri-ateness of an institution's criteria (or how they measurethem) for granting reappointment, promotion, or tenure.Peer-review committees have great discretkm in how theymeasure these criteria and what weight they give to eachcriterion. Courts hold that faculty members and administra-tors involved in the peer-review proct ss are experts, andthey will rarely substitute their judgments for those of peer-review committees*. Peer-review committees, theref(ife.may evaluate faculty candidates using student evaluations,observations, portfolios, citation counts, external evaluators,and other information. Although these evaluation tools allhave strengths and weaknesses (see Centra 1993). peer-review cotninittees may use them as they see fit so longas they do not violate the candidates* civil, constitutional, orcontractual rights.

Faculty members who challenge an institution's relianceon a panicular evaluation tool rarely succeed. Course con-tent. teaching methods, grading, and classroom behavior allinvolve issues of academic freedom (see Section Three). andcourts often determine that they are not qualified to make abetter judgment than peer-review committees even if these

'Although juries may hac less cleicience (Lee 199i).

Studentevaluations, inparticular,increasinglyare being usedin tenure andpromotion.

Tenure, Pramolicm, and Reappointment 1,39

matters were not protected by academic freedom (seeKap lin and Lee 1995). In Wirsing vs. Board of Regents of doeUfrarenity of Colorado (1990), a tenured professor of educa-tion refused to administer the university's standardizedcourse-evaluation forms for her classes, and the dean of thedepartment denied her a pay increase because of herrefusal. The.professor sued to have the university grant herthe pay increase and to prevent it from requiring her to usethe form, alleging that the university was violating heracademic freedom. The court rejected her argument, hold-ing that although the professor had a right to disagree withthe university about the use of standardized evaluationforms, she had no right to fail to perform a duty imposedupon her as a condition of employment. Because she had aright to openly criticize the use of such forms and the uni-versity's requirement was unrelated to course content, thecourt found that the institution did not violate her academicfreedom (Kaplin and Lee 1995).

There have been studies indicating that women and peo-ple of color may be evaluated lower than white males (instudent evaluations, for example), thus creating the possibili-ty of a disparate-impact claim. The research in this area,however, has been inconsistent (Centra 1993). Although thisarea of study deserves more attention, there are no legalobstacles to the use of any evaluation tool. And the incon-sistency of the research will make it unlikely that a court willsustain such a claim of disparate impact.

So long as peer-review committees do not act arbitrarilyand use the evaluation tools consistently and fairly, courtsare unlikely to interfere. Institutions, however, should usemultiple methods for evaluation (see Gillmore 1983). Andevaluators should be trained to judge effectively and to usespecific and detailed examples for their decisions.

Defamation Liability and Other ClaimsAgainst Peer-Review EvaluatorsAdministratcws and Faculty members involved in the peer-review process may be sued fm defamation tOr commentsmade during an evaluatkm, and some administrators may beheld personally liable for the violation of a faculty member'scontractual, civil, or constitutional rights. Probably, the mostcommon tort claim against peer reviewers is defamation. Adefamation is an intentionally or recklessly false published

140

I 5 4

or spoken communication that injures another person's rep-utation or good name (Black's Law Dictionmy 1991). Thereare two types of defamation claims: slander (the communi-cation is spoken) and libel (the communication is publishedin writing or broadcast in some manner through the elec-tronic media). Sin:e the statement in a defamation must befalse, the faculty member bringing the lawsuit must provefalsity. Truth is a defense for those accused of defamation.

The communication must be serious enough that it wouldinjure the faculty member's reputation, and it must be morethan just "offensive" or "unpleasant" (Howard Univeisity vs.Best 1984). Furthermore, the communication must be.dis-closed or published to a third person who has no legitimateinterest in the matter. In Howard Unicmity vs. Best, thechair of the department of pharmacy practice was deniedreappointment and sued the university for, among otherthings, defamation. Best alleged that she was defamed byreports prepared by outside consultants containing state-ments that she was actively opposed to, and failed to coop-erate with, the present administration.

The court held that a publication is defamatory if it tendsto injure the faculty member in her profession or communitystanding; lowers her in the estimation of the academic com-munity; is more than unpleasant or offensive: and makes thefaculty member appear odious, infamous, or ridiculous. Thecourt held that the report was not defamatory., and even if itwas, Best failed to prove that anyone received or circulatedthe report. As this court indicated, even if the statement hasthe potential to injure the faculty member's reputation, itmust be "published"; that is, a third person must be madeaware of the statement.

Defamation also requires that the statement be false.Therefore, opinions usually are not considered defamatorybecause they cannot be "false." Opinions, however, can beccnisidered defamatory if they are based on facts that can beverified as false. This can he difficult too. In Baker vs.Lafayette College ( 1987), a faculty member in the art deparimerit, who had talked about the department chairperson'sbehavicwal problems witli certain administrators and staffmembers, was denied reappointment. I le alleged that eval-uations made by the chairperson and an outside wnsultantwere defamatc wy, and .1 ccimmittee reviewing the matterdetermined that the evaluations were faulty and should be

Pnnnylion, and Reappoilitmoll

155

reperformed. The court indicated that for an opinion to bedefamatory it must imply the existence of undiscloseddefamatory facts justifying the opinion. The court held thatnone of the statements in the evaluation were defamatory;the reports included frank opinion void of innuendo and theinformation was not based upon any undisclosed facts.

Institutions and peer evaluators usually can successfullyavoid liability for comments or statements made during thepeer-review process under a number of theories. High-leveladministrators at public institutions sometimes can claim"official immunity" from tort liability (Kap lin and Lee 1995).For such immunity to apply, the individual's act must bediscretionary and within his or her scope of authority. Instates with such immunity, presidents, provosts, departmentchairs, and deans enjoy immunity if they acted in goodfaith that is, without malice or ill will (see Koerselmun vs.Rhynard 1994; Stabeli vs. Smith 1989).

Administrators at public institutions, on the other hand,cannot escape liability for violating the civil or constitutionalrights of faculty members. Section 1983 allows faculty mem-bers to sue state and local employees for violations of con-stitutional or civil rights. In United Oiro lina Bank vs. I3oardof Regents q Stephen E Austin State Univemio,(1982), a pro-fessor denied tenure sued several administrators, claimingthat the negative decision was based upon allegations hehad made concerning misuse of funds. The faculty memberclaimed that these allegations were an exercise of his FirstAmendment rights. The administraugs claimed immunity,arguing they did not know that their actions would violatethe professor's First Amendment rights. The court rejectedtheir arguments and held them personally liable (Kaplin andLee).

In Dube tw. State Univemity (y* Neu' York ( 199), also dis-cussed in Section Three, the court also refused to grantimmunity to administrators \vho may have violated the FirstAmendment rights of a faculty member. Ernest Dube, anassistant prossor of Alrican studies at MIN-5' Stonvbrook,developed a course titled 'Hie Politics of Race," in which heinterpreted Nazism. Apartheid, and Zknlism as three formsof racism. Controversy arose over the course, which wasremoved from the currinilum, and the institution postponedDube's tenure review. A year later, the first-level tenurecommittee voted unanimously in favor of pit am Akm and

.156

lb

tenure, but the second-level committee voted narrowly fortenure but not promotion.

The dean of humanities and fine arts recommendedagainst promotion and tenure, citing Dube's weak scholar-ship. The provost also recommended against tenure, citingthe unusual vote for tenure but not promotion and Dube'smeager publication record. Dube appealed to the chancel-lor of SUNY, who appointed a three-member committee.The committee recommended that Dube be granted tenurebut released their findings to the press before the chancellorcould consider the matter. A second committee wasappointed, which recommended tenure but not promotion,or in the alternative, that Dube's contract be extended foranother three years. The chancellor denied Dube's applica-tion for promotion and tenure. Dube sued SUINY and all ofthe personnel involved in the promotion and tenure process,alleging violations of Section 1983 and the First Amendment,among other issues. Although the court held that the 11thAmendment of the Constitution. which gives states immunityfrom lawsuits, protected SUM', it did not protect state offi-cials who are sued in their personal and individual capaci-ties for violations of First Amendment rights. Accordingly,the court determined that the individual defendants in thiscase are not immune from liability under Section 1983 norare they immune from liability for violations of the First and14th amendments of the Constitution (see Bickel and Bulbin1990).

Although individual peer reviewers may be found liablefor violations of faculty members constitutional and civilrights, courts generally will grant them a qualified privilegeagainst defamation because the interest of peer evaluators ineffectivel evaluating faculty members for reappointment,promotion, or tenure is so important that some latitudeshould be made for mistakes. Even negative employmentreferences and performance evaluati(ms are privileged,therel(we, if they are made in good faith and distributed onlyto those with a legitimate interest in them. In BversKolodziej( 1977), evaluators stated during the tenure-reviewpmcess that "neither the quality or the quantity'. of a facultymember's scholarly work justified granting him tenure. Sucha statement wa,, I iek. privileged in the setting of faculty eval-uation (Olswang and Lee 1992).

Also, in Skibeli vs. Smith (1989). an associate pmfessor ul

Tenmv. l'n)motion. Reappiimment

15?

geology and geological engineering at the University ofMississippi sued the dean of the engineering school, whohad recommended against tenure and a pay raise in a lettercommenting strongly On the faculty member's performance.The faculty member sued for defamation. The court heldthat the dean enjoyed a qualified privilege against defama-tion liability when there was no proof that he intentionallystated a falsehood, acted with malice (that is, with intent toinjure another person), or greatly exceeded his authority.Furthermore, the allegedly defamatory remarks were notcommunicated to people who did not have an interest in thematter.

A qualified privilege also has been applied even whenthe communication does not relate directly to the facultymember's qualifications. In Komelman vs. Rhynard (1994),Rhynard, a faculty member at the music department of SamHouston State University, was denied tenure. Koerselman,the chair of the music department, had written a letter to thedean recommending against tenure and stating that somestudents had complained that Rhynard had made "inappro-priate comments," some with "sexual overtones." Rhynardsued Koerselman and others for defamation. The court heldthat the chairperson at a state university has official immuni-ty from defamation (and other tort claims). Furthermore,defamatory communications, the court held, are privilegedwhen made in good faith (honest or without malice) on anysubject matter in which person has an interest or duty toperform.

Courts, however, will not grant an absolute privilege in adefamation lawsuit. It would be unfair to grant such a privi-lege because the faculty member whose reputation is injuredwould have no legal recourse. In Goodman vs. Gallerano(1985). a professor of economics sued two faculty memberswho stated orally and in writing that he had mismanagedfunds, plagiarized research, and violated professional ethicswhile he was being considered for tenure at the I Iniversity ofDallas. The two faculty members had filed charges of"unprofessional conduct" against Goodman, and these wereforwarded to the Rank and Tenure Committee, which deniedhim tenure. The court held that these allegations were notabsolutely privileged since to do so would unnecessarilydeny innocent victims the right to seek compensation. Thecourt indicated that these faculty members would have a

144

1 5 6

qualified privilege if they acted in good faith and withoutmalice.

This qualified privilege, therefore, can be lost if the per-son being accused of defamation made the statement on animproper occasion, acted in bad faith, or excessively "pub-lished" the statement (Kap lin and Lee 1995, p. 130). Theinstitutions should informits peer reviewers, therefore, thatthey should investigate the "facts" that provide the basis forthe potentially defamatory statement to ensure that the state-ment is true or that it is reasonable to believe it to be true.Peer reviewers also should not consider innuendos norshould they communicate their findings to people who haveno interest in the matter. And any opinion must be basedupon disclosed and truthful information.

Institutions and peer reviewers also may avoid liability fordefamation and other liability claims on the grounds that thefaculty member consented to the evaluation. By agreeing tohave his or her credentials evaluated for the purposes ofreappointment, promotion, or tenure, a faculty memberconsents to others commenting on those credentials (Kap linand Lee 1995; Olswang and Lee 1992).

Finally, if a faculty member at a public institution isdenied reappointment, promotion, or tenure based upon anegative evaluation, he or she may be able to claim a "liber-ty interest" under the 14th Amendment, thus requiring theinstitution to provide him or her with due process proce-dures (notice and an opportunity to be heard, for example)to refute the evaluation. The statement must be such that itimposes on the faculty member a "stigma" or prevents himor her from getting other employment (Board qf Regents vs.Roth 1972). But as the Supreme Court indicated in Bishopvs Wood (1976), liberty interests are not implicated if thestatements were not publicly disclosed. Faculty members atpublic institutions subject to sunshine laws, apparently, maybe able to sustain a claim of defamation if stigmatizing ordefamatory statements are contained in their personnel files,and these files are subject to public review.

The ScenarioLet us return to the hypothetical situation mentioned at thestart of this section. You sought to learn how the peer-review committee voted on your promotion application,fearing gender discrimination may have occurred. Are you

%enure, Promotion, and Reappointment 145

confident that you can obtain the information you seek?Much of your case depends upon whether you have someevidence that discrimination has occurred (comments over-heard by you or others or statistical evidence, for example).It is unlikely that your institution will voluntarily inform youhow particular members of the committee voted. If youhave some evidence of discrimination, perhaps the institu-tion will provide you with a redacted copy of the committeedeliberations. But is a redacted copy of the committee'sdeliberations sufficient? What if you have reason to believethat specific members of the committee discriminated againstyou? If you file a claim with the EEOC, then the EEOC islikely to get the information from the institution, and if not,it is likely to convince a court to compel your institution toturn over the information.

As a result of University of Pennsyliania vs. E.E.O.C.(1990), the institution is not likely to prevail by claiming acommon-law or academic freedom privilege. If you sue, italso is likely that you can compel the disclosure of the infor-mation. If your state's laws permit you access to this infor-mation, you can obtain it just by asking. Your state.however, may have other laws that protect the privacy ofpeer reviewers. If this is the case, perhaps you successfullycan argue that the need to disclose potentially discriminatoryinformation outweighs the peer reviewers' right to privacy.

SummaryPeer-review committees have great discretion in evaluatingcandidates for reappointment. promotion, and tenure. Theymay use any method of evaluating candidates as long asthey do not arbitrarily or capriciously. Faculty membersdenied reappointment, promotion, or tenure often are leftwith very little understanding of the basis for the decisionand without a meaningful opportunity to challenge any neg-ative information. As a result, a faculty member or theHOC may be able to obtain access to peer-review materialst( 1 discover prix)f of discriminatkm if either initiates a suitagainst an institution. Furthermore. in some states. peercvaluatk ins generally are made available to faculty membersunder employee right-to-know or sunshine laws (Olswangand Lee 19921.

Despite the trend in c(mrts of granting access to peer-review materials. they have been very deferential to the sub-

146 ti

stance of peer-review decisions and have constantly refusedto substitute their judgments for those of peer reviewers(Hendrickson 1991; Lee 1985). Although faculty membersalleging discrimination have been given access to their per-sonnel files and the files of other professors, courts generallyhave been concerned with the impact this disclosure has onthe peer-review process. As a result, courts continue tosearch for a balance between the importance of confidentiali-ty for the peer-review system and the need to prohibit dis-crimination in higher education (Hendrickson 1991).

The peer-review system likely will not suffer from disclo-sure of confidential peer-review materials. Peer evaluationsbased on sound and fair reasoning will always withstandchallenges. For example, in Bina vs. Providence College(1994), the faculty member of Iranian descent lost his dis-crimination case because the tenure-committee minutesclearly showed no evidence of discrimination. Furthermore.in states in which sunshine and employee right-to-knowlaws include personnel files, the peer-review system doesnot appear to suffer.

Even though courts will compel disclosure in some situa-tions, the decision of whether to release peer-review materi-als to the faculty member is one of institutional policy(Olswang and Lee 1992). Some institutions provide facultymembers denied reappointment, promotion. or tenure with,at a minimum, a redacted copy of the peer-review materials,and recent data indicate that the peer-review system is notgreatly affected by disclosure of peer-review materials(Olswang and Lee 1992). All institutions, however, shouldinform peer reviewers that confidentiality cannot be guaran-teed.

Altlmugh faculty members and administrators involved inthe peer-review process can be sued fm defamation andother torts, they usually are protected from liability by statelaw or a qualified privilege. Also, most institutions haveinsurance covering this type of matter. Of course, peerreviewers can lose this protection if they act with malice,bad faith, or disclose the informatkm to people with nolegitimate interest in the matter. Peer reviewers, however,should understand that as long as they acted honestly andfairly and ph wided detailed examples for tla..ir conclusions,they are protected from liability and the integrity of thepeer-review system is maintained.

Thnure. Pronudion. (nut Retypoinonen1 147

RECOMMENDATIONS FOR POLICY AND PRACTICE

As we have indicated, courts provide institutions with agreat deal of autonomy from judicial review in employmentmatters. Faculty members usually have lost their lawsuits.Lalloue and Lee pointed out that only one in five facultymember prevailed in Title VII suits (1987)*. This does notmean, of course, that fitculty members will not continue tosue institutions when they are denied reappointment, pro-motion, or tenure, even if the decision is valid from a legalstandpoint. A decline in enrollments at many colleges hasled to serious staff reductions, resulting in fewer teachingpositions. Given the financial expense of tenure, some insti-tutions also are establishing tenure quotas. Lawsuits, there-fore, are likely to increase.

Financial constraints and legal obligations create a needto validate criteria and procedures so that institutions canmake fine distinctions between generally competent facultymembers (Biernat 1987; Centra 1979). I3y reviewing theirpolicies and practices to ensure that they are within legalparameters, institutions can do much to minimize lawsuits orat least to demonstrate to courts that they did not act arbi-

trarily.The following suggestions are intended to minimize the

risk of litigatkm, but they should not be read as legal advice.Each institution has its own special needs, particular legalobligations, and political climate. Each institution shouldconsult with its attorney if it wishes to change or modify itscurrent policies and procedures. These recommendations.however, may clarify particular concerns at some institu-tions, and they may provide administrators and faculty mem-bers with intOrmation that may assist them in consultingwith their attorneys.

Institutions should involve legal counsel in settingpolicy and procedures for reappointment, promotion,and tenure decisions. Regardless of what kind of legalservices institutions have (fi)r example. in-house counsel,state attorney, or a private law firm), legal counsel performstwo basic roles: treatment and preventive law. Treatmentlaw focuses on actual challenges to the institution's policiesor practices. such as when lawsuits are filed or threatened:w hen the instituticm is cited for nonconnpliance by a govern-

dm-, not take tuft, Account settkluctits.

Te Mire. Plynno lion. and ReappoinlMent

16

ment agency; or when the institution wishes to sue (Kap linand Lee 1995). Preventive law, on the other hand, focuseson initiatives an institution should take to avoid litigation.

Preventive law should he emphasized. The attorney mayhelp administrators and faculty members involved in reap-pointment, promotion, and tenure decisions by identifyingthe legal consequences of proposed actions, pinpointing therange of alternatives t'or avoiding legal problems, identifyingthe legal risks of each alternative, sensitizing administratorsto legal issues and the importance of recognizing them early,and determining the impact of new or proposed laws, regu-lations, and court decisions on institutional practice (Kap linand Lee 1995). Administrators, faculty members, and attor-neys should perform legal audits periodically. These legalaudits involve surveying each office and function to ensurethat policies and practices comply with legal principles.Furthermore, a legal audit can serve as an early warningsystem that alerts administrators, faculty members, and legalcounsel of potential legal problems long before they lead tolitigation.

The reappointment, promotion, and tenure policiesand proc edures should be explicit, unambiguous, andconsistent. Administrators shoukl exercise great care indrafting employment contracts and institutional policiesbecause courts will first look to the actual language orwords of these sources to determine the rights and responsi-bilities of both parties. All terms shoukl be defined andwritten in a manner that is easy to understand. Institutionsshould ensure that all employees receive a copy of the poli-cy, and administrators should be trained to administer thepolicies appropriately. All employment applications, con-tracts, handbooks, policies. procedures, guidelines, andwork rules should be periodically reviewed to ensure thatthey are consistent with each other and clearly delineateeach party's rights and responsibilities. Carelessly draftedpolicies and procedures lead to confusion and litigation.Furthernuge, courts would be ft vced to res(wt to inft)rmalsources (institutional practices and verbal assurances of keyadministrators, for example) to resolve the issue.

Institutions should pay careful attention to those prac-tices or customs that are not specifically addressed in

/ 50

163

the institutions' written policies. Courts have looked tothese informal practices when the language of a contract isambiguous or inconsistent. Some practices have evolveddespite written policies. Institutions should put in writingthose practices that are to be part of the faculty contract ofemployment and eliminate or cease those that are not.Once put in writing, it is extremely important for administra-tors and faculty members to adhere to the written policies orthey will not be able to justify any decisions based uponthose policies.

Institutional officers and key administrators should beinformed that their actions and words can bind theinstitutions to a contract. Presidents, vice presidents.deans, and department heads should he informed that theiractions and oral assurances or promises can create contrac-tual rights for faculty members. although oral modificationsof written contracts generally are held to he invalid andunenforceable. Nevertheless, some courts have upheld suchcontracts in a few instances in which the actions of adminis-trators clearly warranted such findings. Institutions shouldclearly and explicitly state which officer or administratormav bind the institution to an enlplovment contract. Forexample. the institution may indicate in the contract or thefaculty handbook that only the president may bind the insti-tution to an oral contract. This kind of statement not onlyprotects the institution but faculty members are put onnotice that they may not rely uptm the assurances of thosewho cannot keep their promises.

Policies should indicate clearly and explicitly howreappointment, promotion, or tenure is to be acquired.Policies that are silent or unclear as to I,(Av tenure isacquired may result in a judicial finding of tenure by defaultor de facto tenure. Clear and explicit policies protect theinstitution's right to reward those faculty members deemedto have earned it, and faculty members are clearly informedof the criteria and procedures for the acquisition of promo-tion or tenure. Of umrse. some instituticms have automaticreapp)intment, pn)motion, and tenure i'M)licies. and theymay not want to change their policies. All institutions, how-twer, should consider relevant state laws, cc Alective-bargain-ing agreements. and the impact on faculty recmitment and

Policies thatare silent orunclear as tohow tenure isacquired mayresult in ajudicial findingof tenure bydefault or defacto tenure.

Tenum. rnmhdiun. and Reappanament /5/164

V5.2

morale prior to initiating any kind of significant change intheir policies.

All units in the institution should be governed by asingle reappointment, promotion, and tenure policy.Colleges or universities should adopt a single policy thatspecifies the minimum eligibility requirements for reappoint-ment, promotion, and tenure. This policy also should gov-ern the process, procedures, and timing of the decisions aswell as any notification and appeals guidelines. This way,all faculty menthers are treated in a consistent manner,regardless of the department to which they belong. At largeuniversity systems, a single policy governing these employ-ment (.1(.cisicns may seem difficult, especially when the indi-vidual colleges, schools, and departments all have differentstandards (McKee 1980). But inconsistency promotes litiga-tkm. The single policy is not meant to take away discretionbut to ensure fairness for all faculty members. Althoughsuch a policy would prescribe minimum eligibility require-ments (excellence in teaching, research, and service, forexample), it still should allow each department or disciplineto det'2rmine whether and how faculty members qual4 forreappointment, promotion, or tenure.

The criteria for reappointment, promotion, or tenureshould be specific enough to provide guidance to thefaculty member. Institutions enjoy extensive deferencefrom the courts in determining the criteria for employmentdecisk)ns. Many institutions also provide little concreteinformation about its criteria and how faculty members satis-fy them. Ambiguous criteria lead to confusion, uncertainty,and, ultimately. litigatkm. The criteria should be specificem)ugh to pn)vide faculty members with guidance as towhat is expected of them and flexible em)ugh to allowadministrators and peer-review committees to consider thefaculty members' total accomplishments. Institutions, forexample, may inform faculty members that "service" mustinclude departmental and institutionwide committees.Institutions also may base reappointment, promotion, ortenure on such considerations as the priorities of the institu-tk )n. new and developing disciplines, interdisciplinary andcollaborative work, and special assignments (see Diamond

6 o

1994). Faculty members, however, should be made awareof the specific criteria used by the institution.

Faculty members should be provided with as muchinformation as possible as they prepare for their reap-pointment, promotion, or tenure review. The moreinformation the candidate receives as he or she prepares forreview, the easier the process will be for the candidate, thecommittee, administrators, and the institution. Ideally, facul-ty members should receive information in four areas: thetype of documentation expected from them; the specificsteps that will be followed by the committee; the criteria thatwill be used to assess the quality of the materials that areprovided; and how the various activities of the faculty mem-ber will be weighed (Diamond 1994).

Faculty members should be entitled to procedural safe-guards before they are released from their contracts.Although the Constitution does not require colleges anduniverSities to provide untenured faculty members with min-imal due process requirements, most institutions do providethem. This is sound practice, as it ensures that faculty mem-bers are treated fairly and insulates the institutions fromallegations of arbitrariness. Institutions should provide fac-ulty members with adequate reasons for the negative deci-sion and appropriate notice, and faculty members should beentitled to an internal grievance mechanism. The AAUP'sStandards for Notice of Nonreappointment (AAUP 1990)requires 12 months' notice in advance of dismissal for afaculty member employed for more than two years. Thispractice provides faculty members with time to relocate orto seek reconsideration of a negative decision before theirexisting appointments have expired (Brown and Kurland1993). Such procedural safeguards allow institutions toavoid mistakes or rectify them, protects the faculty members'academic freedom and other rights, and decreases the prob-ability of lawsuits. If a lawsuit occurs and some willcourts will look favorably upon institutions that have thesesafeguards.

Institutions should provide orief Aation and careerdevelopment for new faculty members. Orientation and

Tenure. Promotimi, and Reappointment 153

; G 6

career development for new faculty members helps themunderstand and deal with institutional expectations andhelps to ensure their success (l3oice 1992). Furthermore, byproviding these services, institutions show faculty membersthat they want them to succeed. Senior faculty membersshould he encouraged to become mentors for young facultymembers, giving them advice, collaborating with them onprojects, and evaluating their performances (Boice 1992;Leap 1993). Of course, faculty members who become men-tors should be rewarded by the institutions.

Institutions should develop a process of annually eval-uating faculty members. Faculty members should be eval-uated before the tenure decision is made. An annualperformance evaluation would be useful for everyoneinvolved. The institution benefits from alerting faculty mem-bers to potential problems, and it develops a written recordshould litigatkm later arise. The faculty member benefitsbecause he or she is alerted to potential problems and hasan opportunity to improve. These evaluations should bemeaningful and constructive, accurate and timely, relevantand candid and provided in both formative and summativesettings; otherwise, no one benefits. The institution shoulduse multiple methods of evaluation such as teaching portfo-lios, student evaluations, and peer evaluations (Centra 1993).The information used in these evaluations also should bejob-related and nondiscriminatory.

The faculty member should be apprised of any perfor-mance problem with enough time to improve. The fac-ulty member should not be surprised by his or hercolleagues' negative evaluatkm at the time the tenure deci-sion is made. Such a surprise leads to anger and is unfair.If the faculty member is alerted of any performance problembefore the summative evaluatkm is made, he or she has theopportunity to improve. At the veiy least, the faculty mem-ber is put on notice that his or her performance is inade-quak.. This practice should be intended to improve facultyperformance and to assist in making reappointment, promo-tion, or tenure decisions. but it also provides a written docu-mentatkm of the problem and the Ili }lice >1 ii to the facultymenil)er slamld litigation arise.

154

1 6 /

Faculty members should have the opponunity to review,comment upon, and sign the performance evaluation. Inthis way, if the faculty member has any Objections, he or shecan state them at that time. The institution then may con-duct an immediate investigation which would promote theresolution of the matter within its borders (Biernat 1987).Of course, anv information that may hurt the faculty mem-ber's reputation should he investigated. All facts formingthe basis of any allegation must be true: innuendos shouldnot form the basis of any allegatkms. And the informationshould not be released to noninterested parties.

Faculty members denied reappointment, promotion,or tenure should be provided with, at the very least, aredacted copy of their performance evaluations andpeer-review material upon request. Evemme involvedin the faculty-evaluation process shoukl understand thatpeer-review materials may be subject to disclosure, especial-ly in employment-discrimination cases. These materials.therefore. should be prepared with care. Although peer-review materials need not be disclosed unless a lawsuit orHOC claim is initiated, institutions shoukl have internalpolicies governing the disclosure of peer-review materials,personnel records, or performance evaluations. Institutionsshould consider releasing these materials upon request, atleast in redacted form, to a faculty member subjected to anegative employment decision.

The number of people with access to this ink wmationshould be limited, of c(mrse. But pnividing this ink )rtnationto the faculty member may prevent extensive litigation. espe-cially if the faculty member does not have a legitimate claim.Colleges and universities should consider having a "gatekeep-er" who is trained in the fundamentals of state and federallaw as well as institutional policies (Cunningham. Leeson. andStadler 1988). Thk gatekeeper is responsible for these typesof requests and may provide the facuhy members with a com-prehensive summary of a decision and, if there is enoughevidence to indicate that the decisk in may have been motivat-ed by illegal fact(ws, nu we information may be released to thefaculty member. Faculty members also shoukl have access totheir lx.rsonnel files and redacted copies of ()tilers' files if'necessaty when they file an internal grievance.

Munn,. Pnnnotion, rout keappuintment 165 155

Institutions should commit themselves to ending dis-crimination and take whatever steps are necessary toachieve this end. The commitment to end discriminationmay lead to a complete restructuring of the decision-makingprocess (Biernat 1987). But colleges and universities mustbe able to defend their practices, and the best defense is toeliminate discrimination. Toward this end, an institutionmay establish educational programs and sensitivity trainingand prohibit openly biased people from participating inreappointment, promotion, and tenure decisions.Establishing mentoring programs for women and people ofcolor also will assist these faculty members to succeed.

Institutions should be conscious of the important legal,political, and social interests associated with affirmativeaction. The conflict between institutional and individualrights is most greatly illustrated in affirmative-action cases.The institution's right to use race or gender, not to harmwomen or people of color hut to assist them, appears to haverecently given way to the individual rights of faculty memberswho are not part of any protected groups. Affirmative-actionprograms have been justified on important institutional andsocietal interests such as to remedy the effects of past discrim-ination and to increase diversity. These justifications do notappear to be sufficient today.

Although some affirmative-action plans are currently legal,the viability of these programs is in a state of flux in today'spolitical and social climate. Arguably, without affirmativeaction women and people of color may be subject to discrim-ination, leading to a violation of their individual rights. So,the battles about affirmative action may involve determiningwhose individual rights are more prominent. Regardless ofhow this plays out in the political, social, and judicial arenas,the institutions likely will be in the difficult position of strug-gling with very important interests: the need to repay certaingroups of people for previous discrimination and to increasethe diversity in its fitculty ranks and the need to judge facultymembers solely on the quality of their performance.

Individuals involved in the evaluation or reviewprocess must be made aware of the fundamentals ofemployment-discrimination law. Faculty members,

1 56

administrators, and even students involved in the reappoint-ment, promotion, or tenure process should understand thelegal principles of employment discrimination. This is not totie their hands or take away their discretion but to makethem aware of potentially illegal practices.

Institutions should establish grievance procedures thatare easy to use. Most institutions have a grievance processthat permits faculty members to challenge negative employ-ment decisions. Grievance procedures should be knownand available to all faculty members. These proceduresshould be easy to use and provide faculty members with afair opportunity to be heard. Furthermore, the decisions ofgrievance committees should be consistent and fair.

Institutions should consider adopting binding arbitra-tion or other methods of dispute resolution. Arbitrationis common in collective-bargaining agreements. And assome of the cases indicate, arbitration can be useful in pre-venting protracted litigation. This type of nonjudicial resolu-tion may be less adversarial than litigation and mayminimize the legal, financial, and emotional expensesinvolved in litigation. Arbitration, however, also can beburdensome and complicated. As with grievance proce-dures, arbitration and dispute-resolution policies and proce-dures also should be easy to use.

Some Final WordsFaculty members do not always prevail in lawsuits againstinstitutions because of a legitimate legal claim but becausejudges or juries believe they were treated unfairly (Olswang1992). To ensure fairness, institutions should evaluate facul-ty members realistically and accurately. They should discussany problem or potential problems directly with the facultymember, and these discussiuns should be completely andaccurately documented. Faculty members should receiveconstructive criticism and be permitted to improve prior tobeing discharged, and they should be warned that if they donot improve they may be released (Olswang 1992). If afaculty member must be released from his or her contract,an institution shoukl be 1-)repared to show that there aregood reasons for the decisicm (inadequate teaching or schol-

Tenure. Promotion. and 1?eappointment 157

arship, for example), and these reasons must be substantiat-ed with credible evidence. This is not only sound practicefrom a legal standpoint, but it also is fair.

58

1 2 /

1MM.

LIST OF CASES

AAUP is. Blownfield College, 322 A.2d 846 (Ch. Divs. 1974).Adarand Constructors. Inc. is. Pena, 115 S. Ct. 2097 (1995).Ahmadieb. et al. vs. State Board ql Agriculture. 767 R2d 746 (Col.

Ct. of Appeals 1988).Association of New jersey State College Faculties is. Dungan. 316

A.2d 425 (1974).Baker us. Lafayette Cokge. 504 A.2d 247 (Pa. Super. Ct. 1986).I3aker es. Ialayette College. 532 A.2d 399 (Pa. 198").Beckwith us. Rhode Island School id Design, 404 A.2d 480 (R.I.

1979).

Bina is. Providence College, 844 F. Supp. 77 (1).R.1. 1994).Bishop is. Wood. 426 1.S .311 ( 1976).Board qf Regents ofstate colleges rs. Roth, 408 564 (1972).Board of Trustees vs. Superior Court. 119 Cal. App. 3(.1 516 (19811.

cert. aenied. Doug vs. Board qfmistees, 48-4 U.S. 1019 (1988).

Bradfiwd College, 261 N.L.R.B. 565 (1982).Brown es. Board ofliducation idThpeka, 347 U.S. 483 (1954).Brown vs. Thustees of Boston University, 891 F.2d 337 (1s) Cir. 1989).Bruno es. Detroit Institute (y Technology. 215 N.W.2d 745 (19"Bros us. Kolodziel,i63 N.E.2 628 (III. App. Ct. 19-.7).Chung es. Park. 511 F.2d 382 (3d Cir. 1975).City of Richmond .1. A. Croson Co., 488 1*.S. 469 (1989).

Clark vs. Claremont nosily (,'enter. 8 Cal. Rptr. 2d 151 (Cal. App.2 Dist. 1992).

Ow is. Board qff Regents if MIVISity Ill Wisconsin. ,109 NAX'.2d 166

(Wis. App. 1987).Colburn rs. Trustees of Indiana I 'taro-say, 739 F. Supp. 1268 (S.D.

Ind. 1990).Cooper vs. Ross, 1-'2 F. Supp. 802 (F.D. Ark. 19-9).Craig rs. Alabama State I 'Hirelsay, F. Supp. 120- (M.D. Ala.

1978).

C.11-. Post Center (0.iing Island I Mtosity. 189 N.L.R.B. 904 ( I91 ).Desimone is. Skidmore College 517 N.Y.S.2d 880 (Sup. Ct. 1987).Dixon is. Rutgers. 521 A.2d 1315 (NJ. Super. A.D. 198").Dube is State ()Mersa(' of Neu' )ork 900 E2d 58- ( 2(..1 Cir. 1990).Ousipwsne ()awl:city. 261 N.L.R.13. 587 (1982).

Catholic I Uirercity Anwrica. 856 I:. Stipp. 1 (D.D.C.199.11.

E.E.O.C. Is. Franklin Marshall college, 7-5 E2d 110 (3d Cir.1985).

E.F.0 C i limo:sal .Votre Dame Int lac. -15 V.2(1 i31 (7(11 Cir.1983).

Enri,gbt is. Calif inwire State I "niveusity, 5- Fair Ernpl. Prac. Cases 56( ED. Cal. 1989).

Thnure. Promotion, and Reappointment 159

74,

Faculty of the City University of New York Law School at QueensCollege vs. Mutphy, 539 N.Y.S.2d 367 (A.D. 1 Department. 1989).

Fisher vs. Asbeville-Buncombe Thcbnical College, 857 F. Supp. 465(W.D.N.C. 1993).

Ford vs. Nicks, 866 F.2d 865 (6th Cir. 1989).Ganguli vs. University of Minnesota, 512 N.W.2d 918 (Minn. Ct.

App. 1994).Goodman as. Board ofTru.stees of Community College District 525,

511 E Supp. 602 (N.D. 111. 1981).Goodman vs. Gallerano, 695 S.W.2d 286 (Tex. App. 5 Dist. 1985).Goodship vs. University of Richmond, 860 F. Supp. 1110 (E.D.Va.

1994).

Goss vs. San Jacinto Junior College. 588 E2d 96 (5th Cir. 1979).Greg vs. Board of Higher Education. City of New York, 692 F.2d 901

(2(1 Cir. 1982).Greene vs. Howard Univers(ty, 412 F.2d 1128 (D.C. Or. 1969).Gfts vs. Duke Power Co., 401 U.S. 424 (1971).Gutzwiller vs. Fenik, 860 E2d 1317 (6th Cir. 1988).Ilackel vs. Vermont State Colleges. 438 A.2d 1119 (Vt. 1981).Halpin vs. LaSalle University, 639 A.2d 37 (Pa. Super. Ct. 1994).Hander tw. San Jacinto Junior CbIlege. 519 E2d 273 (5th Or. 1975).Hill vs. Mlledega College, 502 So. 2d 735 (Aki. 1987).Honore vs. Douglas. 833 E2d 565 (5th Cir. 1987).Howard University vs. Best, 484 A.2d 958 (D.C. App. 1984).In Re Dinnan, 661 E2d 426 (5th Or. 1981), cert. denied. 457 U.S.

1106 (1982).International Association of Firefighters vs. City qf Cleveland, 106 S.

Ct. 3063 (1986).Ithaca College. 261 N.L.R.B. 577 (1982).J. thtpenter vs. Board tf Regents, University qj Wisconsin System,

728 E2d 911 (7th Or. 1984).Jackson vs. Harvard I 'ithrtsity, 111 ER.D. 472 (D. Mass. 1986).Jackson vs. Harl'ard University. 900 E2d 464 (1st Cir. 1990).Jeffries vs. Harleston, 828 F. Supp. 1066 (S.D.N.Y. 1993). affirmed,

21 Eld 1238 (2nd Cir. 1994), ret.ersed and remanded, 115 S.Ct.502 (1995), reconsidered. 52 E3d 9 (2nd Cir. 1995), cert. denied.115 S. Ct. 1265 (1995).

Jimenez vs. Almodomr, 650 E2d 363 (1st Cir. 1981).johtisotr 15. namporlation Agency. Santa Clara Onally. 180 1

616 (1987).Jones vs. University of Central Oklahoma. 13 E3d 361 (10th (;ir.

1993).

Kahn vs. Superior Court qf the County 4Santa Clara. 233 Cal. Rptr.662 (1987).

Keyishian vs. Board of Regents. 365 U.S. 589 (1967).King vs. Board of Regents of University of Wisconsin System, 898

F.2d 533 (7th Cir. 1990).King vs. University of Minnesota, 774 F.2d 224 (8th Cir. 1985).Knowles vs. Unity College, 429 A.2d 220 (Me. 1981).Koerselman vs. Rhynard, 875 S.W.2d 347 (Tex. App. - Corpus

Christi 1994).Korbin vs. University of Minnesota, 34 F.3d 698 (8th Cir. 1994).Korf vs. Ball State University, 726 F.2d 1222 (7th Cir. 1984).Krotkoff vs. Goucher College, 585 F.2d 675 (4th Cir. 1978).Kunda vs. Muhlenherg College, 621 F.2d 532 (3d Cir. 1980).Lafayette College vs. Comm. of Pennsylvania. Department of Labor

and Industry, Bureau of Labor Standards, 546 A.2d 126 (Pa.CmmwIth. 1988).

Levi vs. University of Thxas at San Antonio, 840 17.2d 277 (5th Cir.1988).

Levin vs. Harleston, 70 F. Supp. 895 (S.D.N.Y. 1991).Levin vs. Harleston, 966 F.2d 85 (2d Cir. 1992).Lewis University, 265 N.L.R.B. No. 157 (1982).Lewis vs. Loyola University of Chicago, 500 N.E.2d 47 (III. App. 1

Dist. 1986).Local 28 of Sheet Metal Workers' International Association vs.

E.E.O.C., 106 S. Ct. 3019 (1986).Loretto Heights Cbllege vs. N.L.R.B., 742 F.2d 1245 (10th Cir. 1984).Lovelace vs. Southeastern Massachusetts University, 793 F.2d 419

(1st Cir. 1986).Marwil vs. Baker, 499 F. Supp. 560 (E.D. Mich. 1980).McDonnell Douglas Coq,. vs. Green, 411 U.S. 792 (1973).Meyer vs. Nebraska, 262 11.5. 390 (1923).Moche vs. City University of New York 781 F. Supp. 160 (E.D.N.Y.

1992).

Muskovitz vs. Lubbers, 452 N.W.2d 854 (Mich. Ct. App. 1990).N.L.R.B. vs. Catholic Bishop of Chicago, 440 UNITED STATES 490

(1979).N.L.R.B. vs. Florida Memorial College, 820 F.2d 1182 (11th Cir.

1987).

N.L.R.B. vs. Stephens Institute, 620 E2d 720 (9th Cir. 1980).N.L.R.B. vs. Yeshiva University, 100 S. Ct. 856 (1980).Neiman vs. Kingshorough Community College, 536 N.Y.S.2d 843

(A.D. 2 Department. 1989).Omlor vs. Cleveland State University, 543 N.E.2d 1238 (Ohio 1989).Olson vs. Idaho State University, 868 P.2d 505 (Idaho Ct. App.

1994).

Orbovich vs. Macalester College, 119 ER.D. 411 (D. Minn. 1988).

Tenure, Promotion, and Reappointnwnt 161

173

Palmer vs. District Board qf Trustees of St. Petersburg junior C011ege,748 E2d 595 (11th Cir. 1984).

Parate 1W. Isibor,868 E2d 821 (6th Cir. 1989).Pennsylvania Sktte Onninontrealth of Pennsylvania,

Department qf Labor and Indutty. Bureau of Labor Standards,536 A.2d 852 (Pa. CmmwIth. 1988).

Perg vs. Sindermann, 408 U.S. 593 (1972).Pickering vs. Board qf Mucation. 391 US 563 (1968).Pime vs. Layola University qf Chicago, 803 F.2d 351 (7th Cir. 1986).Podberesky vs. Kirwan. 38 E2d 147 (4th Cir. 1995), cert. denied.

115 S. Ct. 2001 (1995).Kajender es. (nit.etNity Mimwsota, 546 F. Supp. 158 (I). Minn.

1982). 563 F. Supp. 401 (I). Minn. 1983).Regents (dam l'niversity qf .11k-Nwin vs. Ewing. 74 I S. 214 (1985).Riggin vs. Board af Trustees of Ball State I Wiremity. 489 N.E. 2d 616

(Ind. App. 1986).Ronwr es. Hobart and William Smith Colleges. 842 F. Supp. 703

(W.D.N.Y. 1994).Roos vs. Smith, 837 E Supp. 803 (S.D. Miss. 1993).

Scelsa es. City I 'nfretsity cd New 1Ork, 806 E. Supp. 1126 (S.D.N.Y.1992).

Scharf vs. Regents c-,1 the University al (JalijOrnia, 286 Cal. Rptr. 227(Cal.App.11)ist. 1991).

Scott vs. Univervity al Delauvre. 455 E Stipp. 11(12 (I). lkl. 1978).Snitow vs. Rutgers I 'nivercity, 510 A.2d 1118 (NJ. 1986).Sola vs. Lafayette Cbllege, 804 E.2d 40 (3d Cir. 1986)..Soui I's. Board (!f7)-ustees of the giTellIleSAV, 513 F.2(1

347 (6th Cir. 1975).Staheli t.s. Smith. 548 S.2d 1299 (Miss. 1989).st(1te Ey. k Lpinles us. Ohio State I Piversity. 637 N.E.2d 911 (Ohio

1994).

Sunshine Is. Long Island ()tiro:qty. 862 E. Supp. 26 (E.D.N.Y.1994).

SIIVezy Is. New Hampshire, 354 I'S 23 (1957).ihiel (.ollege. 261 N.L.R.B. 58) (1982).'Primer vs. I 'niversity .11ississimW, 420 E2d 499 (5th Cir. 1969).1)111M carolina Bank vs. Board (?/. Regents (.01(phen F. Austin

State I 'nitvrcity, 665 E.2d 553 (5th Cir. 1982).l'niled Stales ts. Paradise. 80 l'.S. 149 (1987)./ nWetsity of CalijOrnia Ro4ent.. vs. Bakke. 38 I S. 265 (1978)./ niverstly of Pen nsllvania is F P.O.C.. 100 S.C. 577 (1990)./ lu(g:Va.). (!frillshlurph, Case No. PERA-R-81-53-W, 25 ( I 98- ).

rev'd, 21 Pa. Puhl. Employee Rpts. 203 ( I99))).alentine vs. Smith, 654 1-.2d 503 (8t11 Cir. 1981).

162

Washington vs. Davis, 426 U.S. 229 (1976).Waters vs. Churchill 114 S. Ct. 1878 (1994).Watson vs. Fort Wind, Bank &Mist, -487 UNITED STATES 977

(1988).Weber vs. Kaiser Aluminum Co., 443 U.S. 193 (1979).Whiting tls. Jackson State l'niversity 616 E2d 166 (5th Cir. 1980).Wirsing vs. Board Qf Regents Qf the 1.niverSits Worgdo, 739 F.

Supp. 551 (D. Colo. 1990), affirmed without (pin.. 9-45 E2d 112(10th Cir. 1991).

Wygant vs. Jackson Board ofEducation. 106 S. Ct. 18-(2 (1986).

Pr(411O1ioll, and Reappointment

17 D

REFERENCES

"AAUP Re-Endorses Affirmative Action." March/April 1995.Academe 82(2): 6.

Academe. July/August 1992. Access to faculty personnel files: 24-29.

Aguirre Jr., A., A. Hernandez, and R. Martinez. 1995. "Perceptionsof the Workplace: Focus on Minority V/bmen Faculty." Initiatives56(3): 41-50.

American Association of University Professors. 1990. The 1940Statement of Principles on Academic Freedom and Tenure. InPolicy Documents & Reports ("The AAUP Red Book").Washington, D.C.: American Association of UniversityProfessors.

Anderson, T. 1988. "Blzwk Encounter of Racism and Elitism inWhite Academe: A Critique of the System." Journal of BlackStudies 18(3): 259-72.

Baglione, F.M. 1987. "Title VII and the Tenure Decision: The Needfor a Qualified Academic Freedom Privilege ProtectingConfidential Peer Review Materials in University EmploymentDiscrimination Cases." Suffolk. Unh.ersity Law Review 21: 691- .

721.

Banks, W.M. 1984. "Afro-American Scholars in the University: Rolesand Conflicts." American Behavioral Scientist 27(3): 325-38.

Barrow, C.L.11. 1990. "Academic Freedom and the University TitleVII Suit After University of Pennylvania vs. EEOC and Brown vs.Rustees of. Bosunt 15liversity.- l'anderbilt Law Review 43: 1.571-(16.

Bednash, G. 1991. "Tenure Review: Process and Outcomes."Rwiew of Higher Education 151 I t: t"'-63.

Bickel. R.D.. and J.B. Bulbin, eds. July 1990. The CollegeAdministrator and the Courts. College AdministrationPublications, Inc.

Biernat. 1.. 1987. "Subjective Criteria in Faculty EmpktymentDecisions Under Title VII: A Camouflage for Discrimination andSexual Ilarassment." Vniversity Odifinwia. Davis. Law Review20: 501-19.

Black's Lau:Mc-Um/my. 1991. 6th ed. St. Paul. Minn.: \VestPublishing Co.

Blackwell, I.E. 1988. "Faculty Issues: The Impact cm Minorities."The Review 4114;1)er Editattimi 11(-I): 417-3.1.

Boice, R. 1992. The New Faculty Member: suppaning and EosterftProftssi(mal Developnwnt. San Francisco: Jossey-Bass.

Brookes, M.C.T., K.l.. German. 1983. ,lk,eting the Challenges:Developing Murky Careers. AS11E-ERIC I lighter EducationRept trt No. 3. \Vashingoni, D.C.: Ass( wiation tor the Study ofIligher Education. El) 232 51(1. 5.1 pp. NIF-01; pc-03.

7enure. Promotion. and Reapm,intment /0 5

1 7 t3

Brown, R.S.. and J.E. Kurland. 1993. "Academic Tenure andAcademic Freedom.- In Freedom and lenure in the Academy,edited by W.W. Van Alstyne. Darham. N.C.: Duke UniversityPress.

Cahn. S.M., ed. 1993. Affirmative Action caul the t 'iliversitr APhilosophical inquiry. Philadelphia: Temple University Press.

Centra. J.A. 1979. Determining Faculty Effrctirowss: ,IssessingTeachilig. Research, and SCrriCe for Personnel Decisions andImprovement. San Francisco: Jossey-Bass.

1993. Reflective Faculty Evaluation: Enhancing Teaching andDetermining Faculty Effectiveness. San Francisco: Jossey-Bass.

Chait, R.R. and A.T. Ford. 1982. Beyond Traditional knure: AGrath, to Sound Policies and Practices. San Francisco: Jossey-Bass.

(Than. S.. and 1,. Wang. 1991. "Racism and the Model Minority:Asian-Americans in I ligher Education.- In The Racial aisis inAmerican Higher Educathm, edited by P.G. Altbach and K.om)tey. Albany: State l'niversity of New York Press.

aronide qf Higher Mucation . Feb. 3. 199i. "Credentials on Thal."A1.4+.

. March 10. 1995. "Scheduling MotherIRIod..- A14-15.

. March 31, 1995. "Tenure Reexamined.- A17-18.-. April 28, 1995. "Affirmative Action on the Line.- Al2-33.-. June 23. 1(;95. "Blow to Affirtnative Actkm." A21-23.

Aug. . 1995. "Affirinative-Actkm Aftermath.- Al8+.. Sept. I, 1995. Almanac Issue.

Sept. 8. 1995. "U. of Mass. Trustees Reject Tenure for ThreeProfessors.- A27.

Clague. M.W. 1987. "The Affirmative Action Showdown of 1986:Implications for Iliglwr Education.- journal of (;ollege and['nivel:city taw 1.1(2): 171-25-.

Coates. K. June 23. 1995. "It Is Time to Create an Open System ofPeer review.- Chronicle qic ligher Education: A.M.

Commission on Academic Tenure in I ligher Education. 1973.Facility re.' A Report and Recommendations by theCommission on Academic kintre in Higher Education. SanFrancisco: Jossey-Bass.

Omer. W.R. January February 1996. "Why Tenure Wc rks.-Academe 82: 26-9.

Cunningham. M.P.. T.A. Leeson, and J.R. Stadler. 1988. "Kahn rs.s'uperior Court (y'the Oninty of Santa (lam: The Right ofPrivacy and the Academic Freedom Privilege With Respect tocsAitif)dential l'eer Review Materials.- Journal (f College aml

sairemity Law 15( I I: 73-85.

Del.ano, NI. 1987. "Disctivety in l'niversity Employment

166

_I 7

I )ist unman( it Suits Slic oukl Peer Ite !L.A. Materials lieI'ri 'lege& ./oar,ia/ r,O.011ege ttnel 1 ',tiro:city lAur I 1(1) 121-51.

I )1.1111( Ind. It NI 199-1 Servmg tat Prtiodnun and ?Own'inmin,,,, I hi, 0-ntat, Bolton. Anker Publishing

. Int

I \um. A II It j \lenges. B Watkins. and P. Berglund. 198.i.\Liking It ti tilt lip Aunicn titti MinnrilY Faculty in Ihu1t adenitt I all/ Nlarket American liebetrwral Sciollis1 2-131:till 2;

I 1,111t P 19,it In I )eten'.t it Athrinatie Action.- In.111a maw non ana tbe I ntto...11r I l'Inlact,phical /nanny.4.11,1 lit S. \ ( .11111 It.'1111ly I 'nivcrsity Press.

I sankc 11 \Lilt It April I99C Tenure and the FacultyPo, kit), k I i/in' PIS

I P)')I S.Iiiltit4 \leanings A, ademic Fre(dom. An\nal-a, er`di. ,!1 E E( Mvi ulna I nu Idtc 3).

..ippa I \I ll); I Pad /nue ik ulty 1 ligher 1..ducatunt al a1111 FRB. Higher klut ation Rep( m Nu. 3

Aashinot .11 I) t \ ssot >1- the Stu(Iy of I liglicrI dot anon I I) 2c1 )68 129 pp Wail: PCato.

I \I Anil \\ 1.t.`11e 1993. The li"ibie Facult.vluirr,,t a,,. vento, linter. In 1 ligho hIttonion. sanI Llitist 11 j,..t.\

t 011111.it I, \I 19Si 'N111tler11 R,11111g .1`, a Factor in Fat (illyI inpl . incr. and Peri( nlit Het lett imanal (0,',,1104e and

nn crsit 1. Ian Iii I, SC- -1,1 It midi ks, ii It \I PM 1 Mc' ( Ne.t. /hei) ( im.ttinn.q/CieS. and Ole

artt It veka Kan National I h-gani/ation on Legal Problems(it I dllk it nil

11(1111 i k. III. It .111.1 It A Luc 1983..1(th/en/ft Empli,yinern an(1A', I, oh 1,11tern hulk hal Ret toe alul .1dintracIretare .101(m.1s111 I Ith I lighet I thlt Alltni Report \i i4 Washington. 1).C.:

it 1.11;(,11 It the tuth ii Iligher Fdtk anon. ED 2 40 9-2 133pp \II ill P(

11111 A \ 1)112 \mem ans With Disabilities Act ol 1990."t1t.;111Ilt 1111 It (11.11/ tt 1111 ''',CL111,11 CU I for (!)11eges and

I imelint and I nttomly Ian. 18(3) 380II

:11 it I I' 19:.1i I ,It 1110. .111,1 I)Isinissals: 1)ctelopingt and loit I heolies 1,,ttrnal 1,1.11,glyrr hinter/um MAI.

I ittlt liP)2 Intiodut non to !enure. 1)iit. Process. justI Ict eloping hirt and Comm( t Theories. Privacy lights.

,It hit I \ ,1111,1111 tn. .111(1 .1111el Bargaining.- Paivr presented11 titi t nd Mutual t onlcience on Legal Isstles in I li}4I1L'r

pilot. Planta/toll and Reap/no:Intent 167

Education, Burlington. Vt.Johnson, A.B. 1981. "The Problems of Contraction: Legal

Considerations in University Retrenchment." Journal qf Collegeand 1Iniversity Law 10(3): 269-324.

Johnsrud, L.K. 1993. "Women and Minority Faculty Experiences:Defining and Responding to Diverse Realities." Neu. Directionsfitr Thaching and Learning 53 (Spring 1993).

Johnsrud. L.K., and C.D. Des Jarlais. 1994. "Barriers to Tenure forWomen Lnd Minorities." The Review of 11(qher Education 17(4):335-53.

Kaplin. \V.A. 1985, Me Law gl Higher Education: A ComprehensiveGuide 10 Legal Implications of Administratity Decisum Making.2nd ed. San Francisco: Jossey-Bass.

Kaplin. W.A., and B.A. Lee. 1990. The law qf Higher Education:198i-1 990 Update. National Association of College andl'niversity Attorneys.

. 1995. The hut. of I ligher Education: A Comprehensive Guideto Legal hnplications Qf Administrative Decision Making. 3d ed.San Francisco: Jossey-Bass.

Kogan. M., I. Moses, and E. El-Khawas. 1994. Staffing HigherEducation: Meeting Ainv Chedlenges. Iligher Educatilm PolicySeries No. 27. Bristol, Pa.: Jessica Kingsley Publishers.

Lalloue. G.R.. and B.A. Lee. 1987. Acadentics in Court: TheC.Onsequences Pm ally Discrimination Litigation. Ann Arbor:The University of Michigan Press.

Leap, T.L. 1993. Temire. Discrimination, and the untrts. Ithaca,N.Y.: ILR Press.

Lee, B.A. 1985. "Federal Court Involvement in Academic PersonnelDecisions: Impact on Peer Review.".lournal (il. HigherEducation 5W I I: 38-5.1.

. 1995. Review of the book Tenure. Discrimination. and iheOntrts. Journal (j. nigher /Wucatimm 6W 1 ): 115-17.

Lee. B.A., and J.P. Begin. 1984. "Criteria for Evaluating theManagerial Status of College Faculty: Applications of 1eshival'OivelNity by the NLRB." Journal t! Collt,ge aml .niversity Law10(4): 515-39.

Markie, PJ. 1993. "Affirmative Action the Awarding 01 Tcraire.-Ill Aifirmative Action and 1 niverqty. A Philomphicalhoptity. edited by S.M. Cahn. Philadelphia Temple l'niversityPress.

Mt Kee. RW. 1980. -Tenure b 1)clault. The \onion-n-11 AcquisitionAcadcinic .1"entile."Jourmtl of (. 011ege and I tuverity law -11-

2). 31-56.Menges. R.J.. and W.11. FAum. 1983. "Barriers to the Progress ol

N.Voinen and Minority Faculty." Journal of 119.!ber Education54( 21: 123-11.

/68

1 7 'I BEST COPY AVAILABLE

Metzger, W.P. 1973. "Academic Tenure in America: A HistoricalEssay." In Faculty Thnure: A Report and Recommendations bythe Commission on Academic Tenure in Higher Education. SanFrancisco: Jossey-Bass.

. 1993a. "The 1940 Statement of Principles on AcademicFreedom and Tenure." In Freedom and Thnure in the Academy,edited by W.W. Van Alstyne. Durham, N.C.: Duke UniversityPress.

. 199313. "Professional and Legal Limits to Academic Freedom."Journal of College and University Law 20( 1): 1-14.

Mickelson, R.A., and M.L. Oliver. 1991. "Making the Short List:Black Candidates and the Faculty Recruitment Process." In MeRacial Crisis in American Higher Education, edited by P.A.Althach and K. Lornotey. Albany: State University of New YorkPress.

Moll, J.H. Fcbniary 1992. "Dismissal of Tenured Faculty forIncompetence, Neglect of Duty, or Unprofessional Conduct: ADiscussion of Korj. vs. Ball State University and Riggin vs. BallState University. Paper presented at the Thirteenth AnnualNational Conference on Law and Higher Education, ClearwaterBeach, Fla.

Moody Sr., C.D. 1988. "Strategies for Improving the Representationof Minority Faculty in Research Universities." Peabodyfournalof Education 66(1): 77-90.

Mortimer, K.P., M. Bagshaw, and A.T. Masland. 1985. Flexibility inAcademic Staffing: Effective Policies and Practices. ASHE-ERICHigher Education Report No. 1. Washington, D.C.: Associationfor the Study of Higher Education. ED 260 675. 121 pp. MF-01;PC-05.

Nagle, P. 1994. "Yeshiva's Impact on Collective Bargaining inPublic-Sector lligher Education." journal qf college andUniversity Law 20(3): 383-403.

Olivas, MA. 1989. The Lau, and Higher Education: Cases andMaterials on Colleges in Court. Durham, N.C.: CarolinaAcademic l'ress.

Olswang, S.G. 1982. "Planning the Unthinkable: Issues inInstitutional Re()rganizati(m and Faculty Reductic ins." Journal (f.College and University Law 9(4): 431-49.

. 1988. "I lnion Security Provisions, Academic Freedom andTenure: The Implications of Chicago Teachers I Ilion Is.Hudson." Journal QI'College and thtiversity Lau: 14(4): 539-60.

. February 1992. "Economic Crisis. Reduction in Force." Paperpresented at the Thirteenth Annual National Conference on Lawand Iligher Education, Clearwater Beach, Fla.

Olswang, S.G., and J.I. Fantel. 1980. "Tenure and PeriodicPerformance Review: Compatible Legal and Administrative

knure, Promotion, and Reappointment 169

3

Principles."Journal college and Ilniversity Late 7( 1-2): 1-30.Olswang, S.G., and B.A. Lee. 198-i. Faculty Freedoms and

Institutional Accountability: Interactions and Conflicts. ASI 1E-ERIC Higher Education Report No. 5. Washington. D.C.:Association for the Study of Higher Education. El) 252 170. 90pp. MF-01: PC-04.

. February 1992. "Peer Review in the Sunshine: Legal andPractical Issues." Paper presented at the Thirteenth AnnualNational Conference on Law a,.,1 Higher Education. ClearwaterBeach, Fla.

Partain, J.J. 1987. "A Qualified Academic Freedom Privilege inEmployment Litigation: Protecting Higher Education or ShieldingDiscrimination?" l'andethill Law Review 40: 1,397-02.

Poch. R.K. 1993. Academic Freedom in American HigherEducation: Rights. Responsibilities and Limitations. ASHE-ER1Cligher Education. Report No. 4. Washington, D.C.: Association

for the Study of I ligher Education. El) 366 263. 109 pp. MF-01:PC-05.

Pollard, D.S. 1990. "Black Women, Interpersonal Support. andInstitutional Change." In Changing Education: Wonwn asRadicals and Conservators, edited by J. Antler and S.K. Biklen.Albany: State University of New York Press.

Rabban, D.M. 1993. "A Functional Analysis of 'Individual andInstitutionar Academic Freedom Under the First Amendment."In IWedom and Tenure in the Academy. edited by W.W. VanAlstyne. Durham. N.C.: Duke University Press.

Reyes. M.D.. and 1.1. I Ialcon. 1988. "Racism in Academia: The OldWolf Revisited." Hartzird Educational Review 58(3): 299-314.

. 1991. "Practices of the Academy: Barriers to Access forChicano Academics." In The Racial Crisis in American HigherEducation, edited by P.A. Altbach and K. knuotey. Albany: State'niversity of New York Press.

Roberts, S.V. Feb. 13. 1995. "Affirmative Action on the Edge." l'.S.News G Wink( Report: 32-38.

Rodriguez. R. 1982. Hunger and Menton.: The Education qfRichard Rodriguez. New Iiwk: Bantam Books.

Rothstein, LI'. 1091. "Students, Staff and Faculty Members WithDisabilities: Current Issues for Colleges and l'niversities."Journal 4College and l'inversity Law 17VII: 171-82.

School Law Re/soler December 1001. Topeka, Kan.: NOLPE.Sowell. T. 1990. Prcferentia/Policies: An Internatimial Pervpectire.

\.(.. \N. York: William Morrow Co.

Steele. S. 1000. The Content qf Our Character: A Neu. Racein America. New York: St. Martin's Press.

Swan. P.N. 1900. "Subjective [lining and Primuition Decisions in theWake of km Worth. Anumi(), and Price Waterlomse." Journal (f

I 70

1111

College and Unh'ersity Law 16(1): 553-72.

Tierney, W.G., and R.A. Rhoads. 1993. Enhancing Promotion.Tenure and lle.vond: l'aculty Socialization as a Cultural Process.ASHE-ERIC Iligher Education Report No. 6. Washington. D.C.:Association for the Study of Higher Education. El) 368 322. 123pp. MF-01; PC-05.

Trachtenberg. S./. January 'February 1996. "What Strategy ShouldWe Now Adopt to Protect Academic Freedom?" Acadenw 82:)3.. /5.

Van Alstyne, W.W.. ed. 1993a. Fwedoin and Thrittre in theAcademy. Durham. N.C.: Duke I ni ersity Press.

19931' "Academic Freedom and the First Amendment in theSup7,-me Court of the I 'nited States: An l'nhurried I liskwicalReview." In Freedom and 'tenure in the Academy. edited byW.W. Alstyne. Durham, N.C.: Duke University Press.

Wall Street Journal. Oct. 10. 1991. "Thnure: Many Will Decry It.Few Deny It." RI+.

Washington, V., and W. I larvey. 1989. Affirmative Rhetoric,Negative Action: African-Anwrican and I li.±panic Faculty alPredominantly White Institutions. AS/1E-ERIC I ligher EducationReport No. 2. Washington, D.C.: Association for the Study ofligher Educatkm. El) 316 015. 128 pp. ME-01; PC-06.

Weeks, K.M. 1990. "The Peer Review Process: Confidentiality andDisclosure."Journal of Higher Education 61(2): 198-219.

West. C. 1993. Race Matters. Bo,/on: Beacon Press.

Whicker, Kronenfeld, and RA. Strickland. 1993. Getting%Mitre. Survival Skills kw Scholars 8. Newbury Park. Sage

Publications.

e110I 171

1 c;

\

INDEX OF SUBJECTS

A1940 Statement of Principles on Academic Freedom and Tenure.

See Statement of Principles on Academic Freedom andTenure

AAUP. See American Association of University Professorsacademic freedom

and untenured faculty members, 60as special concern of the First Amendment, 57claim, if accepted that would have actually hinderedacademic freedom, 130contemporary issues of, 60history of legal reciignition of, 58-60in private life, 67in the classroom, 61-64institutional interest in determining what, where and howit shoukl be taught, 62maintaining secret files for promotion and tenure decisionsare antithesis of. 137privilege, didn't protect confidentiality of faculty promotionpackets, 123, 125recognition by Supreme Court as legitimate issue. 8

"academic norms" use by courts to decide cases, 10"Access to Faculty Personnel Files" conclusions. 1992 report of

AMP , 138ADA. See Americans with Disabilities Act of' 1990Adarand ConstrucIms. Inc. vs. Pena (1995), 10'. 114ADEA. See Age Discrimination in Employment Act of 1967administratk c

remedies must exhaust befiwe initiating court action. 81responsibility in financial crisis without needing facultyapproval, 32

administrator bias, court permitted evidence of, 86Affirmative action

and faculty ciintract of empkiyntent, 1 1

and the Constitution. 111-115and Title VII, 107-111case with potential fkir compulsory requirements. 90-91controversial nature of in faculty employment, 102-103critical factors to satisfY in order to juqify in private highereducation, 1 08gicals in re appiintment, pOimotion, and tenure pr, icess,11"

goiwing opposilion to, 103

Tenure. Promollan, aiul Reappninlment 1 7 i

183

kick as a legitimate breach of contract claim. 30legal status, 106-107limits on based upon 1-ith Amendment's Equal ProtectionClause, 111not required unless a court ordered, 107plans

approval as remedies for past discrimination. , 112ratkmale for upholding of. 113that "unnecessarily trammel" anyone's interests not likely

to be upheld. 110programs

legality is cluestk)0. 118government must promote "compelling" ends and be

"narrowly tailored," l07ratkmale against, 1113-105should be conscious of legal, political and social interestsassociated with, 156

African-Americanand other faculty of color usually lose Employment-Discrimination cases. 7.1case challenging requirements as having discriminatoryimpact upon, 76,102Faculty. difficulty to prove discriminatkin against, 87filing of disparate-impact and disparate-treatment claim by90scholarship for. court held violated fourteemh amendment,10--

teaching of viewpoint that were less intelligent than willies,02-63

Age discriminatkexamples ot the difficulty (il winning cases underEmployment Act of 1967,95in Emplciyment Act. 77,94-9()legal basis for lawsuits against. 77

AhMac fieh al I'S. Vale Board (?I. Agriculture (1988). 32Alahatna State Tri )opers. promotions of Afrk an-Americans requited

in. 112-113Alabama Stale 1 'itiversity. 88A Mu di ivat.

Amen( an Asmiciation lor I higher Education oiled examiningtenure ()f. 2

.Nmencan Association of l'iliversilv Proft-sstirs, I.

/7.1

emphasizes the protection of individual professors againstthe institution, 8issued called for broad disclosure of peer-review material,138

Policy statements, 15-17Procedural Standards in Faculty Dismissals Proceedings. 17Standards for Notice of Non re appointment, 31, 153ts Bloomfield Cbllege (1974), 31

Americans with Disabilities Act of 1990, 77Arkansas State University, 113Asheville-Buncombe Technical College, 95Asian faculty members, percentage of full time, 102Association of American Colleges, 7Association of New Jersey State College Faculties vs. Dungan (1974).

35Austin, Jane, book on, 85automatic tenure, 25

Baker vs. Lafayette thllege (1986), 22. 141-112Ball State University. 6Beckwith vs. Rhode Island School of Design (1979). 20. 54-55BPOQ. See bona fide occupational qualificationBina vs. Providence College (1994), 80, 146binding

arbitration or other dispute resolution, institutions shouldconsider adopting, 157nature of actions and words of key administrators, 151

Bishop vs. Wood (1976), 56, 145Board of Regents qf State Colleges vs. Roth (1972, ) 47, 47-48. 56,

145

failure to show effect of a decision on professionalreputation, 76

Board Qf nustees vs. Superior Cowl (1981), 13;bona fide occupational qualification, 97Boston University, 85-86, 93Bradford College (1982), 39Brennan, Justice William, 37-38Brown is. Bmird of Education qf Mpeka (1951), 111

Brown is. Trustees qf Boston I fniversity (1989), 85-86, 92Bruno tw. Detroit histitute Technology ( 27

Byers is. Kolodzief (1977), 143

Tenure, Proration, and Reappointment I 75

1

Calendra Italian American Institute, 116California State University, 110Centra, Nancy, xvChung vs. Park (1975), 21City College of New York, 67City of Richmond vs. JA. Croson (1989), 113-114City University of New York, 116City University of New York Law School at Queens College, 24Civil Rights Act of 1866, Section 1981,93Civil Rights Act of 1871, Section 1983,93Civil Rights Act of 1991,89,91Claremont University, 87-88Clark vs. Claremont University Center (1992), 87-88,93Cleveland State University 54 65Coe vs. Board of Regents of the University of Wisconsin (1987), 29Colburn vs. Trustees of Indiana University (1990), 51Collective Bargaining, 32-41collective bargaining

at private institutions governed by Yeshiva decision, 39at public institutions governed by state law, 39

Commission on Academic Tenure in Higher Education, 3committee deliberations and actual votes, access to, 130-132Communisi. Party, issue of membership in, 64"compelling need." requirement for disclosure of peer review

confidential data , 124"conditional tenure," judicial award of, 93constitution

definition of academic freedom, 9only matters of legitimate public concern protected under,65protection does not apply to faculty members at privateinstitutions, 78

continuing violation doctrine, 80-81contract law as b.isis for defining the rights of private institutions

and their faculty, 9contract of employment

amendment of, 21-22language requiring use of race or gender preferences,115-116

C.W1. lk.st Center Long Island 1'niversity 1971)33contractual rights may not be revoked by state law unless explicitly

provided kir, 24

176

1 8

Cooper vs. Ross (1979), 64Craig vs. Alabama State University (1978), 88criteria to provide guidance for re appointment, promotion, or

tenure, 152-153

Davies, Ivor, 135De factor tenure, 25-26,47,53-56defamation

allegations or other torts do not outweigh the right toprivacy, 135definition of, 140-141liability and other claims against Peer-Review Evaluators.140-145

department and committee chairs liable for punitive damages, 85Desimone vs. Skidmore College (1987), 131Detroit Institute of Technology, 27Dinnan, James, 123

arrived at the jail dressed in full academic regalia, 132"disability"

recommendation that institutions adopt policies clearly definingand illegal discrimination in, 97

"discovery" information-gathering process, 120discrimination

based on physical disabilities, 96-97institutions should commit themselves to ending. 155-156most controversial awards for, 92

disparate-impact, 81-82,88-92disparate-treatment

claim requires proof of intentional discrimination, 82definition, 81

Dixon vs. Rutgers (1987), 125Dube, Ernest, 142-143Dube vs. State University qf A'ew York (1990), 62. 142-143due process rights, 46-47Duquesne University, 40Duquesne University (1982), 40

EEOC. See Equal Employment Opportunity CommissionEleventh Amendment of the Constitution gives states immunity

from lawsuits, 113Employee right-to-know laws, 134-136

Tenure, Promotion, and Reappointment 177

Employment Discrimination, cases brought by women against , 74employment-discrimination

evaluation or review process requires awareness of law,156-157constitutional considerations of lawsuits, 77consequences of litigation. 73-77

Enright vs. California State Univmity (1989), 110"entitlement to tenure," 55Equal Employment Opportunity Act of 1972, 80

affirmative action in higher education initiated by. 106Equal Employment Opportunity Commission

before court action must file a claim with, 81discovery rights broader than those of individual facultymembers. 120right of access to confidential material, 127is. Catholic University of America (1994), 97-98vs. Franklin awl Marthall College (1985). 124. 131

is. University ql Notre Dame Du Lac (1983), 124. 127Equal Protection Clause of the 14th Amendment

affirmative-action plan not denied because of. 113as basis of constitutional limits on affirmative action. 111probably would not permit an argument based upon a"manifest imbalance," 117required a "strict scrutiny" test for legally justifying racialpreferences. 113

ethnic discrimination, attempt to pnwe, 80evaluation tool, no legal obstacles to the use of any, 1.10

facultyas managerial or supervisory and therefore exempt fromNLRA coverage, 36-39contract of employment and affirmative action. 115-116contract terms. 17-18litigatk in, major causes of . xiii-xivnegatn ely affected by financial decisions may sueinstitution , 30-31of color lawsuits against predominantly white institutions,88(f the 00. I m(visay )ork lull school etc. is.

t7)1.7j. ( 1989), 24

perception of being treated unfairly as a cause oflitigation. xiii-xiv

1 78

1 s

usually lose lawsuits, 149fairness, institutions should treat faculty and be able to produce

paper to show it, 157Federal Rules of Evidence, 120, 127

permit courts to issue protective orders against annoyance,132

financial exigency, court upheld dismissal of tenured faculty for, 6First Amendment

academic freedom as a "special concern of," 8can not be denied tenure or re appointment fol exercise of,57

faculty right to express themselves on matters of publicconcern, 66primacy over Title VII, 97right against disclosure of contested documents rejected bySupreme Court , 127right of institutional academic freedom recognized bySupreme Court, 121violations of rights under, 143

Fisher vs. Asheville-Buncombe Thchnicul College (1993), 95Florida Memorial College, 39Ford vs. Nicks (1989), 81, 93Fourteenth Amendment, 77. See also Equal Protection Clause of

the 14th Amendmentcourt held that scholarship for African-Americans violated.107

does not give the guidance provided by detailed niles offederal law, 78rights, 46tenure rights protected under, 8

Frankfurter, Justice Felix, 58, 58-59Franklin and Marshall College. 124, 131freedom of learning, 58Freedom of Speech and Academic Freedc mt. 5-'-58freedom of teaching, 58full disclosure, alternatives to, 132-133

Ganguli t.s. I 'nit.ervity of Minnesota (I it. 23-21"gatekeeper,- need for with regard to tenure related papers

requests,- 155gender conscicms hiring. upliolding of affirmative-actkm plan

calling for, 110

knure, Pronwlion. and Reappointment 179

gender discrimination, legal basis for lawsuits against , 77Goodman vs. Board of Trustees of Community College District 525

(1981), 115-116contract language requires use of race or gender preferences,

115-116Goodman vs. Gallerano (1985), 144, 144-145Goodship, Joan, 95-96Goodship vs. University of Richmond (1994). 95-96Goss vs. San Jacinto Junior College (1979), 65-66Goucher College, 6Gray vs. Board of Higher Education, City of New York (1982). 131,

123

Greene vs. Howard University (1969), 9, 19grievance procedures that are easy to use, institutions should

establish, 157Griggs vs. Duke Power Co. (1971), 89grooming regulations, faculty need not abide by, 67guidelines on elimination of tenured positions, 31Gutzwiller vs. Fenik (1988), 84-85

Hackel vs. Vermont State colleges (1981), 35Halpin vs. La Salle University (1994) . 18Hander vs. San Jacinto Junior College (1975), 67Harvard University, 124-125

Graduate School of Business, 82vs. Thlledega College (1987), 17

Hispanic faculty members, percentage of full time, 102homosexual, legal basis for appeal on discrimination against, 78Honore vs. Douglas (1987), 27-28Howard University, 9, 19. 141Howard University vs. Best (1984), 141

Idaho State lIniversity, 22 , 50incompetence, court upheld dismissal of tenured faculty for, 6Inconsistent enforcement of procedures as a cause of faculty

xiii

Indiana University, 51informal practices, institutions should pay careful attention to.

150-151infmmation required by Ltculty members for tenure review, 152

180

Or

In Re Dinnan (1981), 123, 131Institutional or public affairs, academic freedom in, 65-67institutional

practices important in obtaining tenure by default, 26tenure policies need to be drafted with care to avoid tenureby default, 26

institutions should follow their stated procedures, 23intentional discrimination, need proof for basing case on

constitutional grounds, 77InternationA Association of Firefighters vs. City of Cleveland

(1986), 112Italian-Americans as an underrepresented group among faLulty, 116Ithaca College, 40Ithaca College (1982), 40

J. CaTenter vs. Board of Regents, l'niversity of Wisconsin (1984),91-92

Jackson State University, 66 , 88Jackson vs. Harvard 1'niversity (1986), 131-132Jackson vs. Harvard University (1990), 82James, William Calvin. 136Jeffries vs. Harleston (1993), 67Jesuits, reserving certain tenure-track positions in its philosophy

department for, 97Jimenez is. Almodovar (1981), 6Johnson vs. Transportation Agency (1987), 109

exclusive faculty hiring lines for woman and people of colorlikely are unlawful, 109

quotas, fixed numbers, or fixed percentages prohably areunlawful, 109

several affirmative issues settled by. 109Jones is. 1:niveisity of Central Oklahoma (1993), 55

Kahn vs. Superior Court of the C.'onwy of Santa Clare (1987),135-136

Keyishian vs. Board qf Regents (1967), 8, 57, 121struck down New York's loyalty laws and regulations in, 59

Kingsborough Community ColkTe, 3.1King is. Board of Riwilts qll'uiveisity lVisconsin System (1990).

53

Tentire, PrOMOtiOn, ui,iil Reappoinhnent 181

King vs. University of Minnesota (1985), 6Knowles vs. Unity College (1981), 31Koerselman vs. Rhynard (1994), 142, 144Korbin vs. University of Minnesota (1994), 83Korf vs. Ball State University (1984), 6Krotkoff vs. Goucher College (1978), 6Kunda vs. Muhlenberg College (1978), 92-93

Lafayette College 22 29, 116, 134, 141Lafdyette College vs. Commonwealth of Pennsylvania, etc. (1988),

134

LaGuardia Community College, 123La Salle University, 18legal counsel, institutions should involve in setting policy and

procedures, 149-150"legitimate business reason" for hiring actions must be stated by

institution, 79lehrfreiheit. See freedom of teachinglenient grading policy as reason to deny tenure. 22letters by external scholars determined to he performance

evaluations, 134Levi vs. University of Texas at San Antonio (1988), 22Levin vs. Harleston (1991), 62, 67Levin vs. Harleston (1992), 63Lewis University, 40Lewis University (1982), 40Lewis vs. Loyola University of Chicago (1986), 21libel, definition of , 141"liberty interests," 32, 56

grounds for, 47charges not made public cannot form the base for claims,57claim under the Fourteenth Amendment, 145

Lieberman vs. Gant (1979), 76limit disclosure, court order requesting, 132Lica! 28 of Sheet Metal Workers' International Association vs.

E.E.O.C. (1986), 112Long Island llniversity 33, 81, 86-87Loretto Heights College, 39-40Loretto Heights College vs. NLRB (1984). 39-40Lovelace vs. Southeastern Massachusetts University (1986), 51-52,

61-62

182 192

Loyola University of Chicago, 21

Macalester College, 125Managers

as employees involved in developing and enforcing theemployer's policies, 36exclusion from labor laws, 36

mandatory-retirement programs, illegality of, 19mandatory subjects under collective-bargaining agreement, 34-35"manifest imbalance"

proper criterion for proving, 110Equal Protection Clause probably would not permit anargument based upon , 117Title VII affirmative-action cases more likely to succeed inhigher education, 114

"manifest racial imbalance" criteria, 108Mansfield College, 21Marwil us. Baker (1980), 19McCarthy era, caused expansion of legal basis of academic

fre-Aom, 58McDonnell Chair of East European History, 135McDonnell Douglas CoT. vs. Green (1973), 82

elements of a disparate-treatment claim outlined by SupremeCourt in. 82

McKee, 26Meyer vs. Nebraska (1923), 58Middle Tennessee State University, 81Minor College, 31misconduct, court upheld dismissal of tenured faculty for, 6Moth(' vs. City Univerwity of New litrk (1992), 81monetary damages, other comparable employment may be

required for, 81Muhlenberg College, 83Muskoilitz vs. Lubberc (1990), 134

National Labor Relations Act of 1935, 33National Labor Relations Board, 33.

cmerage, faculty as managerial or supervisory and thusexempt from, 36-39decisions, conditions that seem to influence decisions of ,40-41

Tenure, Pronto/ion, and Reappointment1 9:i

183

jurisdiction, issue of religious institutions being subject to,34

vs. Catholic Bishop of Chicago (1979), 34vs. Florida Memorial College (1987), 39vs. Stephens Institute (1980), 39vs. Yeshiva University (1980). 36-39

National origin based discrimination, legal basis for lawsuitsagainst, 77

Native American faculty members, percentage of full time, 102Nazism, Apartheid, and Zionism as three forms of racism, teaching

of, 62neglect of duties, court upheld dismissal of tenured faculty for, 6Neiman vs. Kingshorough Community College (1989), 34New Jersey State College, 35N.L.R.B. See National Labor Relations Boardnotice of nonrenewal, faculty members require adequate, 32

0Odessa junior College, 47"official immunity." 142Ohio Public Records Act, 136Olson vs. Idaho State University (1994), 22, 50, 56, 57Omlor vs. Cleveland State University (1989). 54. 65

on its face" claim. See prima facie claimopinions usually are not considered defamatory because they

cannot be "false," 141oral promises not sufficient to create "property interests," 52Orbovich is. Macalester College (1988), 125orientation and career development for faculty, institutions should

provide. 153-154outside jobs, faculty members can hold, 67

Palmer vs. District Board qf Dmiees of St. Petembuig junior College(1984). 111

Pa rate is. Isibor (1989), 63Parnes. Rochelle, xvpart-time faculty members & adjunct professors. 1940 Statement

does not apply to, 25peer-review

evaluations. rationale for maintaining confi dentiality of.120-121

184

9 ,1

evaluators, defamation liability and other claims against,140-145faculty members and administrators protection fromliability, 147information disclosure, required a balancing of competinginterests, 123materials

release decision is one of institutional policy, 147courts appear to be moving away from granting qualified

privilege in, 124rationale in favor of disclosure of, 121-122

process, court stressed importance of confidentiality in, 124system and state law, 133

PennsylvaniaLibor Relations Board, 39Personnel Files Act, 134State University, 134State University vs. Commonwealth pi Pennsylvania, etc(1988), 134

People with disabilities discrimination, legal basis for lawsuitsagainst , 77

performanceevaluations and peer-review material should be shown tofaculty, 155problems, faculty members should have enough time toimProve, 154-155

permissible subject under collective-bargaining agreement, 35Petry vs. Sindermann (1972). 26, 27, 47, 47-48, 53, 55, 56

de factor tenure based upon constitutional principlesestablished in, 26

Pickering vs. Board qf Education (1968), 65Pime is. Loyola University of Chicago (1986), 97Podberesky vs. Kirwan (1995), 107The Politics of Race," 142poor teaching as a common basis for negative tenure decision, 139poor training as a cause of faculty litigation, xiiipositions, guidelines on elimination of tenured, 31preventive law, importance of, 150prima fade claim, need to establish under Title VII of the Civil

Rights Act of 1964 , 79privilege of confidentiality in discrimination cases could not be

claimed at HOC, 122

Tenure', Promotion, and Reappointment 185

9

probationary service length of period required before tenuredecision, 4

proceduralprotection of untenured professors, call for. 7safeguards, faculty entitled to before being released fromtheir contracts, 153

process of annually evaluating faculty members, institutions shoulddevelop , 154

prohibited subject under collective-bargaining agreement, 35promotion and tenure

decisions, primary criteria for, 5policies and practices, study highlighted variabiity in, 3

Property Interests, 50-53in their employment, tenured-faculty have, 46-47oral promises not sufficientl'io create, 52tenure as, 8

Providence College 80. 147

Race discrimination, legal protection against. 77Rajender is. Unit'ersity of Minnesota (1983), 93re appointment, promotion, or tenure, policies

recommended nature of, 150same one should govern all units, 152should indicate clearly and explicitly how one acquires,151-152

reason to deny tenure, lenient grading policy, 22redacting information, issue of whether identifying information can

be, 132Redaction

deficiencies of, 133value of, 132-133

Regents qf the l'nirersity of Michigan vs. Eteiwt (1985). 59Rehabilitation Act of 1973, 77, 96-97Rehabilitation Act ... of 197,1, Section 503, 106Religion Discrimination, 97-98Religious based discrimination, legal basis for lawsuits against , 77religious institutions, issue of whether subject to NLRB jurisdiction,

33rep(irt, subject of. 1

retaliation claim, example of evidence fin-, 87"reverse discrimination," 103, 105

186

19

may need to prove position not within a "traditionallysegregated job category," 110

Rhode Island School of Design, 20, 21, 54-55Riggill ltS. Board of Trustees of Ball State University (1986), 6

Right-to-know laws for employees, 134-136Romer vs. Hobart and William Smith Gollews (1994), 23Roos vs. Smith (1993), 66

Roth, David, 47-48Rothstein (1991) recommends policies defining illegal "disability"

discrimination, 97Rutgers University, 35

Sam Houston State University, 144same re appointment, promotion, and tenure policy should govern

all units , 152San Antonio Junior College. 47San Jacinto Junior College 65-66, . 67Salsa vs. City University qf New Ibrk (1992), 116

Scharf vs. Regents of the University cf Califirnia (1991), 131-135

School of Allied Ifealth Professions, 53Scott vs. University glDelaware (1978). 76, 87Section 1981 of the Civil Rights Act of 1866, 77slander, definition of , 141

Snitow vs. Rutgers University (1986). 35-36sociology defined as a "traditionally segregated- field, 110Sola vs. Lafigette College (1986), 29. 116

Soul vs. Board qf Trustees (il. the l'nivelsity (il* Tennessee (1915). 20,

27, 52Southeastern Massachusetts 17niversity.Stabdt vs. Smith (1989), 142-144"staff planning document" exempt from disclosure requirements.

131

Stanford I, 1niversity. 135Stale Ex Rel. James vs. Ohio Stale ( Wirer:city (199)), 136-131

state law superse(k.s institutional autlowity with regard to tenurerights, 21

Statement of Principles on Academic Freedom and Tenure of 1910.1, 7, 60

does not apply to part-time faculty members and adjunctprofessors. 25

as evidence c)f academic custom. 15

Tenure, Promotion. and Reappointment 187

1 q

State sunshine laws, 136-138State University of New York, 142-143statistics, use in disparate-impact cases of, 89Stephen F. Austin State University (1982), 142Stephens Institute, 39St. Petersburg Junior College, 111"strict scrutiny"

applies to affirmative action in public and not privateinstitutions, 108constitutional standard of 107test, requirement of, 113

student evaluationssignificant increase in the use for tenure decisions of, 5used by Peer-Review Committees. 138-140

subjective decision-making practices, can be attacked under disparate-impacttheory, 89courts rarely question, 10

"sunshine laws," 133Sunshine vs. Long Island University (1994), 81, 86-87SUNY Stonybrook. 142Sweezy, Paul, 58Sweezy vs. New Hampshire (1957), 8. 58, 121

Talledega College 17, 28

teaching portfolios, use of, 5Tennessee State University, 63tenure

alternatives to, 2at public institutions, established by Supreme Court as a"property interest," 8benefits to institution of, 2by default, 26by grant, 25costs to institution of. 2court recognized methods of acquiring, 25"Density," 28-30determined by niles under which indivklual originallyhired, 28did not exist in its present form before the 1940s, 6does not guarantee lifetime employment, 5-6

188

policy, reluctance of courts to alter when written policiesare explicit, 54-55reluctance of courts t-3 mandate, 93reviews as performance evaluations and so available forfaculty inspection, 139systems, percentage of colleges and universities with, 3ultimate authority to grant , 4

tenured positions, guidelines on elimination of, 31Texas Southern University, 28The Rehabilitation Act of 1973, 96Thiel College (1982), 40Thurgood Marshall School of Law of Texas Southern University,

27-28Title IX of the Education Amendments of 1972, 94

allows faculty members direct access to a court, 94permits faculty to receive uncap, .-!.d compensatory andpunitive damages, 94

Title VII

First Amendment prima cy over, 97

"manifest imbalance" affirmative-action cases more likely tosucceed under, 114permits voluntary private colleges and universitiesaffirmative-action plans, 108

Title VII and Title IX of the Education Amendments of 1972, 77Title VII of the Civil Rights Act of 1964, 73, 77-81

claims categories, 81-82Mister vs. University of Mississippi (1969), 67Tung, Rosalie, 126

unfair labor practice, failure to bargain in good faith aboutmandatory subjects, 35

United Carolina Bank vs. Board o f Regents Stephen F. Austin StateUniv. (1982), 142

United States vs. Paradise (1987), 112-113Unity College, 31University of Texas, 47iniversity of Arkansas. 64

University of Californi.1 59, 134-135University of Califbrnia Regents vs. Bakke (1978), 59, 112Iniversity of Central Oklahoma, 55

University of Cincinnati, 84

Tenure, Promotion, and Realpointment 189

JJr

University of Colorado, 140University of Connecticut, 76University of Dallas, 144University of Delaware 76 87University of Georgia, 123University of Maryland, 107University of Massachusetts System, tenure density as a factor in, 30University of Michigan, 19, 59University of Minnesota, 6. 23, 83 , 93University of Mississippi, 67, 144University of Notre Dame Du Lac 124, 127University of Pennsylvania, 122, 125-130University qf Pennsylvania vs. E.E.O.C. (1990), 122, 126-132, 137,

146

academic freedom would have actually hinderedacademic freedom, 130access to confidential peer-review materials upon filing of

an EEOC complaint, 129decision, 132, 133

University of Pittsburgh. 38-39University of Pittsburgh (1990) , 38University of Richmond. 95-96University of Southern Colorado. 32University of Tennessee 20, 27, 52University of Texas at San Antonio, 22University of Wisconsin

-Milwaukee, 53. 91-92-Stevens Point. 29

untenured faculty rights to due process, 47untenured professors, call for procedural protection of, 7-up or out" nile, 15-17

VValentine vs. Smith (1981), 113verbal assurances on employment or tenure, validity of, 20-21Vermont State colleges, 35Vietnam Era Veteran's Readjustment Assistance Act of 1974, 106violation

of basic rights as a cause of faculty litigation, xiiiof written agreements as a cause of faculty litigatkm, xiii

voluntarily adopted affirmative-action plan, court will forcefollowing of, 116

190

Washington vs. Davis (1976), 77Waters vs. Churchill (1994), 67Watson vs. Fort Worth Bank & Trust (1988), 89Weber vs. Kaiser Aluminum Co. (1979), 108Wharton School of Business, 126white faculty

employment - discrimination cases against historically blackinstitutions, 74lawsuits against historically black institutions, 88

Whiting vs. Jackson State University (1980), 88Wilde, Oscar, work in progress on, 85William Smith Colleges, 23Wirsing vs. Board of Regents of the University of Colorado (1990),

140

Wisconsin State University-Oshkosh, 47women

bringing cases against employment discrimination, 74faculty members, percentage of full time, 102

Wygant vs. Jackson Board of Education (1986), 114

Yeshiva University, 36-39

Zimmerman vs. Minor College (1972), 31

%ilium, Promotion, and Reappointment 191

ARM-ERIC HIGHER EDUCATION REPORTS

Since 1983, the Association for the Study of HigherEducation (ASHE) and the Educational ResourcesInformation Center (ERIC) Clearinghouse on HigherEducation, a sponsored project of the Graduate School ofEducation and Human Development at The GeorgeWashington University, have cosponsored the ASHE-ERICHigher Education Report series. The 1995 series is thetwenty-fourth overall and the seventh to be published by theGraduate School of Education and Human Development atThe George Washington University.

Each monograph is the definitive analysis of a toughhigher education problem, based on thorough research ofpertinent literature and institutional experiences. Topics areidentified by a national survey. Noted practitioners andscholars are then commissioned to write the reports, withexperts providing critical reviews of each manuscript beforepublication.

Eight monographs (10 before 1985) in the ASHE-ERICHigher Education Report series are published each year andare available on individual and subscription bases. To order,use the order form on the last page of this book.

Qualified persons interested in writing a monograph forthe ASHE-ERIC Higher Education Reports are invited to sub-mit a proposal to the National Advisory Board. As the pre-eminent literature review and issue analysis series in highereducation, we can guarantee wide dissemination and nation-al exposure for accepted candidates. Execution of a mono-graph requires at least a minimal familiarity with the ERICdataba5e. including Resources in Education and currentIndex !oJournals in Education. The objective of thesereports is to bridge conventional wisdom with practicalresearch. Prospective authors are strongly encouraged to callDr. Fife at 800-773-3742.

For further information, write toASHE-ERIC Higher Education ReportsThe George Washington UniversityOne Dupont Circle, Suite 630Washington, DC 20036

Or phone (202) 296-2597; toll free: 800-773-ERIC.Write or call for a complete catalog.

Tenure, Pmmotion. and Reappointment 19.3

9 (I )

ADVISORY BOARD

Barbara E. BrittinghamUniversity of Rhode Island

Mildred GarciaMontclair Stat e College

Rodolfo Z. GarciaNorth Central Association of Colleges and Schools

James HearnUniversity of Georgia

Bruce Anthony JonesUniversity of Pittsburgh

L. Jackson Newellpeep Springs College

Carolyn ThompsonState University of New York-Buffalo

/94

CONSULTING EDITORS

Robert J. BarakState Board of Regents, Iowa

Marsha B. Baxter MagoldaMiami University

Ivy E. BroderThe American University

E. Grady BogueThe University of Tennessee

John M. BraxtonVanderbilt University

John A. CentraSyracuse University

Robert A. CorneskyCornesky and Associates, Inc.

Peter EwellNational Center for Higher Education Management Systems

John FolgerInstitute for Public Policy Studies

Ann H. FrankeAmerican Association of University Professors

.Leonard GoldbergUniversity of Richmond

George GordonUniversity of Strathclyde

Jane HalonenAlverno College

Dean L. HubbardNorthwest Missouri State I lniversity

Thomas F. KelleyBinghamton University

Daniel T. LayzellUniversity of Wiscc msin System

Laurence R. MarcusNew Jersey Department of I ligher Education

Keith MiserColorado State I Iniversity

Tenure, Promotion, and Reappointment 195

L. Jackson NewellUniversity of Utah

Steven G. OlswangUniversity Of Washington

James RheinThe National Teaching & Learning Forum

Gary RhoadesUniversity of Arizona

G. Jeremiah RyanHarford Community College

Karl SchillingMiami University

Charles SchroederUniversity of Missouri

Lawrence A. SherrUniversity of Kansas

Patricia A. SpencerRiverside Community College

David SweetOERI, U.S. Department of Education

Barbara E. TaylorAssociation of Governing Boards

Sheila L WeinerBoard of Overseers of Harvard College

Wesley K. WillmerBiola University

Manta YorkeLiverpool John MOOR'S University

1%

205

REVIEW PANEL

Charles AdamsUniversity of Massachusetts-Amherst

Louis AlbertAmerican Association for Higher Education

Richard AlfredUniversity of Michigan

Henry Lee AllenUniversity of Rochester

Philip G. AltbachBoston College

Marilyn J. AmeyUniversity of Kansas

Kristine L. AndersonFlorida Atlantic University

Karen D. ArnoldBoston College

Robert J. BarakIowa State Board of Regents

.Alan BayerVirginia Polytechnic Institute and State ITniversity

John P. BeanIndiana University-Bloomington

John M. BraxtonPeabody College, Vanderbilt University

Ellen M. BrierTennessee State University

Barbara E. BrittinghamThe University of Rhode Island

Dennis BrownUniversity of Kansas

Peter McE. BuchananCouncil for Advancement and Support of Education

Patricia CarterUniversity of Michigan

John A. CentraSyracuse University

Thnure, Promotion, and Reappointment 197

206

Arthur W. ChickeringGeorge Mason University

Darrel A. ClowesVirginia Polytechnic Institute and State University

Deborah M. Di CrocePiedmont Virginia Community College

Cynthia S. DickensMississippi State University

Sarah M. DinhamUniversity of Arizona

Kenneth A. FeldmanState University of New York-Stony Brook

Dorothy E. FinneganThe College of William & Mary

Mildred GarciaMontclair State College

Rodolfo Z. GarciaCommission on Institutions of Higher Education

Kenneth C. GreenUniversity of Southern California

James HearnUniversity of Georgia

Edward R. HinesIllinois State University

Deborah HunterUniversity of Vermont

Philo HutchesonGeorgia State University

Bruce Anthony JonesUniversity of Pittsburgh

Elizabeth A. JonesThe Pennsylvania State University

Kathryn Kretschmerlniversity of Kansas

Marsha V. KrotsengState College and University Systems of West Virginia

198

20/

George D. KuhIndiana University-Bloomington

Daniel T. LayzellUniversity of Wisconsin System

Patrick G. LoveKent State University

Cheryl D. LovellState Higher Education Executive Officers

Meredith Jane LudwigAmerican Association of State Colleges and Universities

Dewayne MatthewsWestern Interstate Commission for Higher Education

Mantha V. MehallisFlorida Atlantic University

Toby MiltonEssex Community College

James R. MingleState Higher Education Executive Officers

John A. MuffoVirginia Polytechnic Institute and State University

L. Jackson NewellDeep Springs College

James C. PalmerIllinois State University

Robert A. RhoadsThe Pennsylvania State University

G. Jeremiah RyanHarford Community College

Mary Ann Danowitz SagariaThe Ohio State University

Daryl G. SmithThe Claremont Graduate School

William G. TierneyUniversity of Southern California

Susan B. TwomblyUniversity of Kansas

Tenure, Pmmotion, and Reapl,ointment 199

'f2

Robert A. WalhausUniversity of Illinois-Chicago

Harold WechslerUniversity of Rochester

Elizabeth J. WhittUniversity of. Illinois-Chicago

Michael J. WorthThe George Washington University

200

RECENT TITLES

1994 ASHE-ERIC Higher Education Reports1. The Advisory Committee Advantage: Creating an Effective

Strategy for Programmatic ImprovementLee Mild

2. Collaborative Peer Review: The Role of Faculty in Improving

College TeachingLarry Keig and Michael D. Waggoner

3. Prices, Productivity, and Investment: Assessing Financial

Strategies in Higher EducationEdward P. St.John

4. The Development a icer in Higher Education: Toward anUnderstanding of the Role

Michael J. Worth and James W Asp, 11

5. The Promises and Pitfalls of Performance Indicators in

Higher EducationGerald Gaither, Brian P Nedtvek, and John E. Neal

G. A New Alliance: Continuous Quality and Classroom

EffectivenessMimi Wolverton

7. Redesigning Higher Education: Producing Dramatic Gains in

Student LearningLion E Gardiner

8. Student Learning Outside the Classroom: Transcending

Artificial BoundariesGeorge D. Kuh, Katie Branch Douglas. Jon P. Lund, and

Jackie Ramin-Gyurnek

1993 ASHE-ERIC Higher Education ReportsI. The Department Chair: New Roles, Responsibilities, and

ChallengesAlan T Seagren, John W Crestmll. and Daniel W Wheeler

2. Sexual Harassment in Higher Education: From Conflict to

CommunityRobert 0. Rigqs, Patricia H. Mareed, and JoAnn C. Cutting

3. Chicanos in Higher Education: Issues and Dilemmas for the

21st CenturyAdalberto Aguirre Jr, and Ruben 0. Martinez

4. Academic Freedom in American Higher Education: Rights,

Responsibilities, and LimitationsRobert K. Posh

5. Making Sense of the Dollars: The Costs and Uses of Faculty

CompensationKathryn M. Moore and Marilyn J. Amey

Tenure, Promotion, and Reappointment201

6. Enhancing Promotion, Tenure and Beyond: FacultySocialization as a Cultural l'rocess

William C. Tiernty and Robert A. Rhoads

7. New Perspectives for Student Affairs Professionals: EvolvingRealities, Responsibilities, and Roles

Peter H. Garland and Thomas W. Grace

8. Turning Teaching into Learning: The Role of StudentResponsibility in the Collegiate Experience

Mdd M. Davis and Patricia Hillman Murrell

1992 ASHE-ERIC Higher Education Reports1. The Leadership Compass: Values and Ethics in Higher

EducationJohn R. Wilcox and Susan L. Ebbs

2. Preparing for a Global Community: Achieving anInternational Perspective in Higher Education

Sarah M. Picker1

3. Quality: Transforming Postsecondary EducationEllen Earle Chaffee and Lawrence A. Shen-

4. Faculty Job Satisfaction: Vbmen and Minorities in PerilMartha Wingard Mck and Carol Logan Patitu

S. Reconciling Rights and Responsibilities of Colleges andStudents: Offensive Speech, Assembly, Drug Testing, andSafety

.4n nette Gibbs

6. Creating Distinctiveness: Lessons from Uncommon Collegesand Universities

Barbara K. Miensend, L. Jackson Newell, and Michael D.Wiese

7. Instituting Enduring Innovations: Achieving Continuity ofChange in Higher Education

Barbara K. Curry

8. Crossing Pedagogical Oceans: International TeaclnngAssistants in U.S. Undergraduate Education

Rosslyn M. Smith. Patricia Byrd. Gayle L. Nelson. RalphPat Barrett, and Janet C. Constanlinides

1991 ASHE-ERIC Higher Education ReportsI. Active Learning: Creating Excitement in the Classroom

clyirles C Bonwell and James A. Eison2. Realizing Gender Equality in I ligher Education: The Need to

Integrate Work Family IssuesNa n g

202

211

3. Academic Advising for Student Success: A System of Shared

ResponsibilitySusan H. Frost

4. Cooperative Learning: Increasing College Faculty Instructional

Productivity.

David W. Johnson, Roger T. Johnson, and Karl A. Sniith

5. High School-College Partnerships: Conceptual Models,

Programs, and IssuesArthur Richaal Greenberg

6. Meeting the Mandate: Renewing the College andDepartmental Curriculum

William Toombs and William Tierney

7. Faculty Collaboration: Enhancing the Quality of Scholarship

and TeachingAnn E. Austin and Roger G. Baldwin

8. Strategies and Consequences: Managing the Costs in I ligher

EducationJohn S. Waggaman

1990 ASHE-ERIC Higher Education Reports1. The Campus Green: Fund Raising in Higher Education

Barbara E. Brittingham and Thomas R. Pezzullo

The Emeritus Professor: Old Rank, New MeaningJames E. Mauch. Jack W Birch, and Jack Matthews

3. "I ligh Risk" Students in Higher Education: Future Trends

Dionne J. jows and Betty (Viler Willson

4. Budgeting for I ligher Education at the Statc Lel,e1: Enigma.

Paradox, and RitualDaniel T larzell and Jan W tyddon

5. Proprietary Schools: Programs, Policies, and ProspectsJohn B. Lee and Jamie P. Merisotis

6. College Choice: Understanding Student Enrollment Behavior

Michael B. Paulsen

7. Pursuing Diversity: Recruiting College Minority Students

Barbara Astmw and Hui Nu fiez.-WOrmack

8. Social Consciousness and Career Awareness: Emerging Link

in Higher EducationJohn S. SwiJi Jr.

knure, Promotion, and Reapp,intment 203)

"

ORDER FORMQuantity

95-1Amount

Please begin my subscription to the 1995 ASHE-ER1CHigher Education Reports at $98.00, 31% off the coverprice, starting with Report 1, 1995. Includes shipping

Please send a complete set of the 1994 ASHE-ER1CHigher Education Reports at $98.00, 31% off the coverprice. Please add shipping charge below.

Individual reports are available at the following prices:1993, 1994 and 1995, $22.00; 1988-1992, $21.00; 1980-1987, $18.00

SHIPPING CHARGESFor orders of more than 50 books, please call for shipping information.

U.S., 48 Contiguous States1st three hooks Ea. addl. book

Ground: $3.75 $0.15

2nd Da 8.25 1.10

Next Day': 18.00 1.60

Alaska & Hawaii (2nd Day Only)': 13.25 1.40U.S. Territories and Foreign Countries: Please call for shipping information.'Order will he shipped within 24 hours of a request.All prices shown on this form are subject to change.

PLEASE SEND ME THE FOLLOWING REPORTS:

Quantity Report No. Year Tide Amount

Please cl eck one of the fol owing: Subtotal:

0 Check enclosed, payable to GWU-ERIC. Shipping,:0 Purchase order attached ($45.00 minimum):0 Charge my credit card indicated below: Total Due:_ .

sa aste arcHitExpiration Date

Name

Title

Institution

Address

City State Zip

Phone Fax Telex

Signature Date

SEND ALL ORDERS TO: ASHE-ERIC Higher Education ReportsThe George Washington UniversityOne Dupont Cir., Ste. 630, Washington, DC 20036-1183Phone: (202) 296-2597 Tod-free: 800-773-ERIC r) I 3

BENJAmtri BAEz is an instructor of higher education at SyracuseUniversity. He received his law degree in 1988 from Syracuseand will complete his doctorate in higher education in sum-mer 1996. From 1988-93, he served as the university's judicialadviser, administering the disciplinary system. Baez's teachingand research interests include student-discipline matters andfaculty-employment issues, including the legal implications offaculty recruitment and retention and the special issues asso-ciated with minority faculty.

Jo mg A. CENTIta is professor and chair of the Higher EducationProgram at Syracuse University. He served as senior researchpsychologist at the Education Testing Services in Princeton,N.J. Centra has published extensively and performed consult-ing work in faculty development and evaluation, program eval-uation, and student achievement. He is the author of Reflective

Faculty Evaluation: Enhancing Teaching alid DeterminingFaculty Effectiveness (1993). He received his doctorate from

Michigan State University.

rn

9

ISB 1-878180-65-6

781878

5 1 8 0 0 )

38065495-1

2 I ,1