Making Defensible Tenure Decisions

When an institution denies tenure, honesty is the best policy. Otherwise, everyone may end up in court.

By Ann Franke

A new department chair harbored some doubts about the tenure worthiness of an African American assistant professor, but nonetheless decided to cast his fourth-year review in positive terms. Two years later, the candidate was denied tenure.

A department strongly supported a candidate for tenure, but the university-wide committee rejected the recommendation. The committee concluded that the department had followed its typical pattern of accepting second-rate work. Motivated by both friend-ship with the candidate and discontent with the committee, members of the department strongly urged the individual to challenge the outcome.

A dean shared with a colleague his personal belief that the institution applied less rigorous tenure standards to women than to men.

These circumstances are all realistic sparks for litigation over the denial of tenure. They illustrate some of the issues surrounding evaluation, shared governance, and casual comments that form the combustible material fueling academic lawsuits today. If you ask a senior professor how her institution’s tenure system works, the typical answer will describe some criteria involving teaching, research, and service. The professor may mention a written policy, a timetable, and several levels of internal review. Yet on another level, the successful operation of a tenure system also rests on the less tangible factors of candid evaluation: a willingness to make hard decisions, even about close colleagues, and personal investment in a sound institutional process. Overall, success hinges on an abiding sense of fairness to both individual and institutional interests. These factors, which often remain unstated within the institution, weigh heavily in the minds of judges and jurors. They often make the difference between successful and unsuccessful outcomes in court.

Tenure lawsuits are more complex than most other employ-ment litigation. An obvious distinction is that the subject matter—from agronomy to zoology—can be esoteric. More significant, over the years of the probationary period, colleagues and administrators have many interactions with the candidate. These run the gamut from formal evaluation sessions to casual conversations. Some of the exchanges may be forthright, unguarded, or blunt. Others may be so diplomatic or equivocal as to be nearly impenetrable. In the evaluation process, a department chair may be unfamiliar with principles of evaluation or employment law. The aggregate sum of all these interactions becomes, in court, a mountain of written and oral evidence. Whether the evidence arises from careful deliberation, off-the-cuff e-mails, or hallway conversations, it is, from a legal standpoint, all admissible.

Another complexity of tenure-denial litigation stems from the vast cultural divide separating the people who contribute to tenure decisions from the judges and jurors who analyze the outcomes for legal soundness. The faculty members, administrators, and trustees who together decide the professional fate of tenure-track faculty apply aca-demic processes and standards. But when a tenure-denial case lands in court, judges and jurors typically know little about the tenure system and, naturally, apply legal standards and their personal sense of fairness. Academics and outsiders thus bring very different values and expectations to these responsibilities.

Tenure Procedures and Lawsuits

At the same time that internal reviews were growing more elaborate, the courts were beginning to become involved in tenure disputes. In 1964 Congress expressly exempted colleges and universities when it passed the landmark Title VII of the Civil Rights Act, which forbids employers from discriminating on grounds of race, sex, national origin, color, and religion. Not until 1972 did Congress extend the law to higher education. Few tenure-denial cases were filed in the early years, but during the 1980s the caseload gradually increased.

A recurring legal question of the day was whether courts could routinely compel institutions to disclose tenure votes and materials under the rules of evidence. Several federal appellate courts around the country reached conflicting outcomes on the issue. The Supreme Court finally resolved the question in 1990, in a case in which the AAUP participated as a friend of the court. The High Court ruled that no special privilege shields tenure reviews from the general laws of evidence. That means that, in a tenure case, "confidential" views almost invariably see the light of day.

Along with the nature of the evidence, the decision makers also changed. During the 1980s, federal judges resolved most tenure-denial cases. Common wisdom among lawyers at the time was that judges would tend to credit the testimony of university administrators, since both the judges and administrators were highly educated white males and most of the plain-tiffs were women, minorities, or both. Congress changed the legal landscape rather dramatically in 1991, putting employment-discrimination cases in federal court into the hands of juries. The number of employment-discrimination cases has subsequently skyrocketed, from 8,400 in 1990 to 23,700 in 1998 (the most recent year for which figures are available). Although precise numbers for tenure-denial cases are unavailable, they, too, have increased significantly. The common wisdom today holds that jurors are suspicious of institu-tions and tend to favor the "little guy." The confluence of these developments has given rise to very participatory tenure processes, an active litigation docket, full disclosure of tenure-review evidence, and decisions made by juries. The mixture is potent.

Defensible Evaluations

Against this backdrop, several aspects of the tenure-evaluation process become important in tenure-denial lawsuits. Taking some basic steps can reduce the likelihood of litigation. If a suit is filed, the same steps increase the chances that a court will sustain the institution’s decision. Many of the suggestions offered below are drawn from the joint report, Good Practice in Tenure Evaluation, published in 2000 by the AAUP, the American Council on Education, and United Educators. The suggestions reflect the prism of fairness through which jurors view academic processes. (The full text of the joint report is available at www.acenet.edu/bookstore.)

1. On an ongoing basis, provide tenure-track faculty with honest evaluations of their work and prospects for tenure.

Most chairs have a firm grasp on the first element, the criteria for tenure. They may have received tenure themselves under the same institutional standards and participated in many tenure reviews. Uncertainties may arise, however, if the candidate is in an interdisciplinary program, the department has not coordinated any unique departmental criteria with institutional requirements, or the institution is raising its academic standards. In such situations, a prudent chair will seek counsel from the dean or others before conducting an evaluation or tenure review.

If the individual’s performance is exemplary, the chair’s task in making and communicating the evaluation can be simple and even enjoyable. If the candidate has room for improvement (as most of us do), or is irredeemable, the job can be harder. It is critical to rise to the challenge, because frank evaluations provide the candidate with feedback that is vital to his or her professional development and career planning. An effective evaluation will (a) cover the entire review period, not just the most recent few months; (b) apply clear requirements for reappointment and tenure; (c) provide specific examples illustrating the quality of the individual’s performance; (d) offer appropriate constructive criticism and practical guidance; (e) avoid making guarantees or promises about the future; and (f) be written in plain English, not diplomatic argot. Should a lawsuit later be filed, candid evaluations also document the institution’s care with the review process. Among the hardest cases for an institution to win are those in which a faculty member received a series of five or six glowing evaluations but was then denied tenure. Tenure denial should never be a surprise to the candidate, and frank evaluations play a key role in preparing the individual for a possible negative outcome.

2. Be willing to make hard judgments to ensure effective shared governance.

Friendship with a candidate complicated a tenure case against Trinity College in Connecticut. The chemistry department unanimously supported the tenure bid of Leslie Craine, who was not supported by the campuswide committee or the administration. The department endorsed her appeal of the tenure denial. In a news story reporting on a $12.7 million jury verdict in favor of Craine, the department head explained that he and his colleagues incorrectly perceived their roles as her advocates. "She was a friend," he told the Chronicle of Higher Education in February 1999. "We’d worked with her for six years." The well-being of the institution may require putting aside friendships.

Although it was not a tenure-denial matter, the case of Vadie v. Mississippi State University further illustrates that the conscientious expression of professional opinion must underlie meaningful shared governance. Vadie was a tenured full professor in the Department of Petroleum Engineering when, in 1993, the university closed the department. The chemical engineering faculty sent a letter to their head recommending Vadie for appointment to a vacant position in their department. The department head had perceived no enthusiasm for Vadie and was surprised by the positive recommendation.

In private conversations with each faculty member and a subsequent department meeting, no one voiced support for Vadie. The department members later wrote to the dean that, in the court’s words, "because of friendships and their need to remain anonymous and bypass personal embarrassment, it had been their intent that the final recommendations for the position openings be made by [the department head]." Vadie used the inconsistency to his advantage in his national-origin discrimination case against the institution.

Aversion to conflict, friendship, or the potential for embarrassment should not drive tenure evaluations. Departments should be prepared to make honest collective decisions, and individuals who might succumb to inappropriate factors should recuse themselves from the process. Most tenure-denial cases that land in court involve some differences in opinion among the evaluators. Perhaps the department vote was closely divided or the department rejected strong reviews from outside evaluators.

Jurors can accept some differences of opinion as a fact of life. They are far less ready to accept faculty evaluators who based their opinions on factors that were not demonstrably professional or who participated less than forthrightly in making their recommendations. Jurors’ patience runs out with evaluators who change their stories over time. The same characteristics of honesty, professional judgment, and a willingness to make hard decisions that support effective shared governance also support legally defensible tenure decisions.

3. Consider nonrenewal during the probationary period in appropriate cases.

If, however, it appears during the probationary period that the candidate will not meet the standards for tenure, the better course is not to renew the individual’s contract. Some faculty and administrators harbor the belief that it is preferable to deny tenure than not to renew a contract in the middle of the probationary period. Yet the earlier decision will be both fairer to the candidate and better for the institution. From a legal standpoint, a conscientious nonrenewal decision is at least as defensible as a tenure denial. On most occasions, it is more defensible, and the stakes are also far lower on both sides.

4. Be mindful that essentially all oral and written com-ments can be used as evidence in a tenure-denial lawsuit.

Casual, careless, and colorful comments all come out, and they often become central to the case. Remarks such as the following have been featured in tenure-denial litigation:

Because of federal legislation that has eliminated a mandatory retirement age, institutional flexibility would be undesirably constrained, and the granting of tenure in this instance is likely to foreclose a more appropriate appointment later on.

The promotions committee decided that you wouldn’t be happy here, and that other members of the department would resent you and be demoralized.

The English department is a damn matriarchy.

White people who do research in black history are exploiting blacks just for their personal advancement.

The best course is to remain truthful and temperate in all written and oral comments, including those expressed by way of e-mail. Imagine that anything you write or say may be repeated in a newspaper or open court or, worse yet, taken out of context and given uncomfortable focus. Generalizations involving gender, race, age, disability, religion, and other legally protected personal attributes can be particularly troublesome later on.

Committees hearing internal appeals of tenure decisions need to exercise special caution. Their written decisions, and also their deliberations, are likely to be featured prominently in court. Committees should hew closely to the evidence presented and the specific decision-making responsibility that institutional policies vest in them. An appeals decision is not a good forum for broad comment about, for example, the institution’s limited progress in achieving diversity.

In Babbar v. Ebadi, a federal case in which a Kansas State University professor challenged an adverse tenure decision, the court recounted the energetic conclusions of an internal appeals committee. The committee noted in a written report that the department had deviated from proper procedures in the tenure review, the candidate’s further employment was not in the best interest of the university, and the institution should either negotiate a settlement with the professor that would involve his resignation or, as a last resort, grant him tenure and promotion. One wonders how all of these expansive and apparently contradictory conclusions fell within the committee’s assigned sphere of responsibility.

Relatively few communications may be shielded from discovery. Some limited protections exist for attorney-client communications and material that a court finds irrelevant to the plaintiff’s claims. For practical purposes, faculty and administrators should proceed on the premise that everything they say or write is "on the record."

5. Be consistent in applying tenure processes and making tenure decisions.

The most common claims involve gender, race, age, national origin, or disability. The crux of these lawsuits is that had the candidate possessed different personal characteristics, he or she would have been treated more favorably. Consistency is the key to fairness. Consistency operates along several different planes. First, a stable set of criteria, with consistent relative weighting, should be applied to all candidates, and the types of material included in the tenure dossier should be comparable for all candidates. In addition, the same procedural steps should be taken, so that the same framework of timetables, evaluators, and recommendations applies in every case. Unusual programs with, for example, a heavy clinical component or an interdisciplinary focus should establish stable procedures in advance of evaluating a candidate for tenure.

Unfortunately, even in long-standing programs such as English or history, procedural errors occur. In virtually all tenure-denial lawsuits, the plaintiff can point to some respect in which his or her review deviated from established procedures. One major research university, concerned about the recurring problem of errors in tenure evaluation, simplified its process and collapsed some of its proliferating layers of review, appeal, grievance, review of appeal, and the like. Other institutions with tenure processes that have, over time, sprouted too many internal review steps would do well to consider some pruning.

Another area requiring consistency is the longitudinal eval-uation of individual faculty members. Successive reviews of a person need to make sense relative to one another. An effective evaluation will reflect both improving and declining performance, but successive evaluations should not fluctuate markedly in the absence of changed performance. Inconsistency stands at the heart of most discrimination lawsuits, and juries seek proof that the institution treated tenure candidates fairly relative to one another.

6. After the institution has denied tenure to a candidate, help the individual move on with his or her career.

Some faculty members who have been denied tenure report that, after the decision, colleagues ostracized them. Others say they had the opposite experience, that colleagues expressed outrage about the injustice and strongly encouraged them to challenge the outcome. Most often, an approach of supporting the candidate in moving along with his or her career best serves everyone’s interests.

In shunning a candidate, colleagues may increase the individual’s sense of hurt and failure. Common courtesies can reduce some of the sting of the experience. Assistance with locating another position also goes a long way toward helping the individual move beyond the tenure denial. On the other hand, encouraging someone to challenge the outcome may lure him or her into the expensive and protracted form of martyrdom known as civil litigation. Advice from the AAUP staff may give useful perspective to candidates who have been denied tenure.

Conclusion

Ann Franke is vice president for education and risk management with United Educators Insurance. From 1982 to 1997, she served on the AAUP staff and contributed regularly to Academe.

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