Does Collegiality Count?

While academics debate the importance of collegiality in faculty personnel decisions, the courts have spoken. They won’t protect truculent professors.

By Mary Ann Connell And Frederick G. Savage

Although most colleges and universities do not specify collegiality as a distinct criterion for tenure or promotion, many have teaching or service requirements that demand that candidates "work well with colleagues," "demonstrate good academic citizenship," or "con-tribute to a collegial atmosphere." Through these requirements, collegiality has increasingly become an indirect criterion in faculty evaluations.

As members of the academy ponder the appropriate role of collegiality in decisions about promotion and tenure, they face many difficult questions: should the ability to "get along," "fit in," or "work well with colleagues" be a requirement for tenure? Should collegiality be a separate criterion in tenure decisions, or should it be a part of the evaluation of teaching, research, and service? Are academic freedom and free speech stifled, or even threatened, by an emphasis on civility and cordial working relationships among faculty? Does the use of collegiality as a criterion for tenure serve as a means for concealing discriminatory treatment of women and minorities?

Faculty members who have been denied tenure, not renewed, or terminated from a tenured position because of a lack of collegiality have frequently gone to court. They have sued their college or university, claiming that such negative actions violated their rights. As a result, courts have carefully scrutinized collegiality as a criterion in faculty evaluations—and they have consistently upheld its use.

Despite this legal consensus supporting institutional demands for collegiality, many in the academic community oppose reliance on it. In 1999 the AAUP adopted On Collegiality As a Criterion for Faculty Evaluation, in which it recognizes that collegiality is an important aspect of faculty performance. (The text of the statement was published in the September–October 1999 issue of Academe.) The AAUP maintains, however, that isolating collegiality as a distinct criterion for tenure poses a potential danger to academic freedom. Faculty plaintiffs have argued that considering collegiality in tenure and termination decisions constitutes a breach of contract when it is not identified specifically as a distinct criterion in the employment contract or the institutional tenure policy. Courts and legal scholars have entered the debate by cautioning that the subjective nature of collegiality permits its use as a pretext for discrimination.

A Cooperative Effort

Strong reasons exist for considering collegiality in faculty evaluations. To begin with, colleges and universities have legitimate and long-recognized expectations that professors will cooperate with their colleagues in the best interests of the institution. Faculty members do not operate in isolation from their departmental colleagues or from those in related disciplines. They must make decisions as a group regarding the curriculum, the scheduling and teaching of classes, the advising of students, and the allocation of resources and space. These responsibilities require cooperation and collegial interaction. None of them can be carried out successfully if each faculty member acts solely in his or her own personal interest.

Courts have consistently supported these institutional expectations of cooperation among faculty. In Chitwood v. Feaster, for example, the U.S. Court of Appeals for the Fourth Circuit upheld the nonrenewal of several nontenured faculty members whose own affidavits reflected a pattern of "bickering and running disputes with the department heads." In the 1972 decision, the court found that "a college has a right to expect a teacher to follow instruction and to work cooperatively and harmoniously with the head of the department."

Indeed, most of the courts that have addressed the issue of a faculty member’s working relationship with colleagues in tenure, promotion, or termination decisions have concluded that collegiality is an important factor to take into account. I do not know of a single case in which a court rejected consideration of collegiality in the absence of evidence of discrimination or a violation of free speech or academic freedom. It is unusual to find such unanimity of opinion from so many courts, which are frequently the final arbiters of what is "fair" in our society.

Many people in and outside the academy also believe that professors must be good colleagues; many of those same people are genuinely concerned about the increased emphasis on collegiality in faculty employment decisions. Even though the AAUP recommends against the identification of collegiality as a distinct criterion for tenure, it counsels faculty members in its Statement on Professional Ethics to have due respect for the opinions of others. Other AAUP policy statements also refer to the need for faculty to demonstrate respect for one another.

Breach of Contract

In defending the use of collegiality in faculty evaluations, some argue that faculty employment is sufficiently similar to other forms of employment that the normal expectations of civility and cooperation should apply. They assert that a person’s ability to work with others in a civil and positive manner is taken into account in almost all hiring and promotion decisions outside the academy, and the college campus should be no different. Collegial behavior in one’s professional life in no way implies mindless conformity or the absence of dissent, according to this point of view.

Faculty plaintiffs who have been denied tenure or promotion because of a lack of collegiality raise as their most persistent argument that the university’s consideration of their personality or ability to "fit in" with colleagues violates either the employment contract or the tenure policy, when those factors were not defined specifically as criteria for tenure. Courts have overwhelmingly rejected this argument.

A typical example of the cases in which courts have rejected this breach-of-contract argument is University of Baltimore v. Iz. Peri Iz, an assistant professor in the university’s Business School, was reviewed for tenure in 1993. The institution’s tenure and promotion policies defined the criteria for tenure and promotion as teaching effectiveness; research and scholarship; and service to the university, the profession, and the community. During Iz’s review, concerns about her collegiality were raised. The department chair described her as inflexible, defensive, and unwilling to take constructive advice. A faculty colleague said that he worried about "her attitude and collegiality." The dean, the provost, and the president all decided against tenure, basing their decisions largely on Iz’s difficulties with her departmental colleagues.

Iz sued. She based her breach-of-contract claim on the assertion that the university was required to evaluate her solely upon the three stated criteria (teaching, research, and service) and was prohibited from taking into account her collegiality, since it was not specifically included as a tenure criterion. The university contended that the concept of collegiality was inherently included in teaching, research, and service and was therefore an appropriate consideration.

After a three-week trial, the jury determined that the university had breached Iz’s contract and awarded her $425,000 in compensatory damages. The university appealed, and the Maryland Court of Special Appeals agreed with it, writing, "We are persuaded that collegiality is a valid consideration for tenure. Although not expressly listed among the School’s tenure criteria, it is impliedly embodied within the criteria that are specified. Without question, collegiality plays an essential role in the categories of both teaching and service."

Another good example of the views of the courts on breach-of-contract claims concerning collegiality is Bresnick v. Manhattanville College. Robert Bresnick sued when he was denied tenure in the college’s dance and theater department. The college bylaws stated that tenure was to be awarded on the basis of teaching excellence, scholarship, and service. Neither collegiality nor working well with colleagues was mentioned. Bresnick contended that his contract was breached when the provost and the president denied him tenure partly because of his difficulty working with colleagues in a sufficiently collegial and collaborative manner. Bresnick maintained that since the criteria in the college’s tenure documents did not include collegiality, or working well with colleagues, the college could not consider these factors in his tenure evaluation.

The court decided in favor of the college. It held that nothing in Bresnick’s contractual relationship with the college prevented the institution from considering his collegiality as it evaluated his service to the college. The court wrote: "It is predictable and appropriate that in evaluating service to an institution, ability to cooperate would be deemed particularly relevant where a permanent, difficult-to-revoke long-term job commitment is being made to the applicant for tenure."

Discrimination Claims

Many people who oppose reliance on collegiality in faculty employment decisions argue that its use can easily become a mask for discrimination based on race, gender, age, religion, national origin, or disability. They also claim that "collegiality" is such a vague and amorphous term that, even in the absence of intentional discrimination, its use can subtly and adversely affect the chances for tenure of women and minorities.

Even though academic critics of collegiality have expressed serious concerns about the possible discriminatory misuse of collegiality, the courts have decided in favor of universities in almost every discrimination case in which collegiality was raised. In Babbar v. Ebadi, Sunil Babbar, an assistant professor in the management department at Kansas State University, was denied tenure because of inadequacies in his research and a lack of collegiality. The department faculty and chair described him as a "two-faced" person with "zero collegiality" who "will say one thing and do another." The college’s advisory committee on promotion and tenure described Babbar’s research as weak and found him to be a poor colleague within his department. The dean, the provost, and the president agreed, denying him tenure.

Babbar sued, alleging reverse discrimination based on sex, religion, and national origin. The court, however, found that Babbar presented no evidence showing that his denial of tenure stemmed from his national origin or religion. It further held that the record was replete with evidence that the university denied him tenure because of perceived deficiencies in his research and his inability to get along with his colleagues.

Stein v. Kent State University is another case in which a court upheld reliance on collegiality, finding that it was not a pretext for discriminatory treatment of a faculty member. The plaintiff, Ramona Stein, alleged that her contract as an assistant professor of audiology was not renewed because of gender discrimination and in retaliation for her having filed an internal grievance and an external charge with the Equal Employment Opportunity Commission (EEOC). The university maintained that Stein was not reappointed because she demonstrated only average performance in teaching and research, and because she lacked collegiality, which was exhibited by her filing charges and suits that the EEOC and the courts consistently judged as frivolous.

The district court granted summary judgment for the university, writing, "The ability to get along with co-workers, when not a subterfuge for discrimination, is a legitimate consideration for tenure decisions." The U.S. Court of Appeals for the Sixth Circuit affirmed, also finding the university’s reasons for nonrenewal to be legitimate and nondiscriminatory.

Courts have long deferred to the decisions of colleges and universities regarding who should teach, and they have continued to do so even when issues of collegiality and the termination of tenured faculty have been involved. In Jawa v. Fayetteville University, for example, the court upheld the termination of a tenured professor who sued, claiming that the university had dismissed him because of his race and national origin. The court found, however, that Manmahon Jawa, a professor of education and psychology, was a poor teacher unwilling to prepare for class; that he had difficulty interacting with students; that he was uncooperative with his colleagues; that he was unwilling to follow appropriate directives of his superiors or to comply with university policies and procedures; and that he recklessly, and with little regard for the truth, accused his superiors of incompetence and discriminatory practices against him.

In particular, Jawa demonstrated unprofessional conduct toward his department chair when he stopped speaking to the chair except in meetings, where he frequently caused a disturbance. On one occasion, he burst into the chair’s office; on another, he called the chair a liar; and on yet another, he refused to come to the chair’s office when requested to do so, responding that he "was not an office boy." These incidents, said the court, "clearly reflect unprofessional conduct and a continuing pattern of noncooperation on the part of the plaintiff."

Stifling of Dissent

Many people believe that use of collegiality in faculty employment decisions is most dangerous in its potential effect on academic freedom and free speech. These critics worry that relying on collegiality in such decisions chills faculty debate and stifles dissent on campus. One such critic, Edgar Dyer, professor of politics and university counsel at Coastal Carolina University, has argued that the term is so vague and ambiguous that it does little to provide specific guidelines for behavior. Furthermore, he says its subjectivity makes it impossible to evaluate whether it is being used fairly or to punish faculty who disagree with those in control of the tenure process. He suggests creating a new judicial standard of academic free expression for faculty at public institutions that would provide them greater protection than currently exists when collegiality is used in performance evaluations.

Another critic, Perry A. Zirkel, professor and former dean of education at Lehigh University, questions whether colleges and universities have equated collegiality with personality. He notes that using personality as a criterion in tenure evaluations would be a serious threat to individual academic freedom: overemphasis on a pleasing personality could be used as a smokescreen for punishing unpopular ideas or behavior.

According to these critics, the perceived "uncollegial" behavior of faculty members who are denied tenure is often unpopular conduct, such as supporting teacher organizations, holding Marxist beliefs, or participating in other "anti-establishment" causes. They suggest that instead of affording almost unbridled deference to institutional autonomy, the courts should treat universities like other employers and require them to provide legitimate nondiscriminatory reasons for their decisions not to grant tenure.

The AAUP advances such concerns in On Collegiality As a Criterion for Faculty Evaluation. It asserts that to isolate collegiality as a distinct dimension of evaluation poses a "potential danger to academic freedom" and "should not be added to the three traditional areas of faculty performance." According to the Association, in the heat of making important decisions regarding hiring, promotion, and tenure, it would be easy to confuse collegiality with the expectation that a faculty member display "enthusiasm" or evince "a constructive attitude" that "will foster harmony." In the AAUP’s view, such expectations are contrary to basic principles of academic freedom and will contribute to a college or university "replete with genial Babbitts." The Association takes the position that collegiality should not be assessed independently of teaching, research, and service but should be understood instead as a "virtue whose value is expressed in the successful execution of these three functions."

Legal Green Light

Despite such concerns within the academic community, the courts have affirmed at every turn the use of collegiality as a factor in decisions concerning faculty employment, promotion, tenure, and termination. They usually perceive collegiality as important to the ability of colleges and universities to fulfill their missions. In most of the cases that have arisen, collegiality has not been specified as a separate evaluative criterion. Still, the courts have concluded that it is a relevant consideration in assessing teaching, research, and service. Given the strength and unanimity of the case law, institutions of higher learning can feel confident from a legal standpoint in considering collegiality in faculty employment decisions, even if it is not specified as a separate and distinct criterion.

The posture of the courts is really not that far philosophically from the position of the critics of collegiality, particularly the AAUP. The AAUP itself recognizes a need for collaborative and constructive cooperation among faculty members. Its criticism focuses on the use of collegiality as a separate fourth criterion in the evaluation of faculty members. Many of the court decisions are completely consistent with this view. Furthermore, the courts have also agreed with critics that collegiality may not be used to engage in covert discrimination or to punish the exercise of academic freedom. In most of the cases they have considered, the courts have simply concluded that no such improper actions have taken place.

The academic community, particularly the faculty, remains divided about the wisdom of incorporating collegiality as a factor in evaluating faculty performance. Although little has been written on the subject, debate over the issue, especially between faculty members and administrations, is ongoing and, at times, contentious. In the legal realm, however, consideration of collegiality in higher education employment decisions appears to be valid as long as institutions exercise the same caution against misuse of collegiality that they apply to any other subjective evaluation.

Mary Ann Connell is general counsel for the University of Mississippi, where she also teaches the law of higher education. Frederick Savage is deputy general counsel at Johns Hopkins University. This article is an abbreviated version of a more detailed article published in the spring 2001 issue of the Journal of College and University Law.

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