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Legal Watch: Publish or Perish: The Ever-Higher Publications Hurdle for Tenure
By Donna R. Euben
Under the academic adage "publish or perish," would Galileo receive tenure at the University of Pisa today? Sure, he was smart—he proved Copernicus’s theory that the earth moves around the sun. But what about his publishing record? Galileo took six years to write his treatise, The Dialogue on the Two Chief World Systems: Ptolemaic and Copernican. Church censorship, peer review, and the plague caused further delays, and three more years passed before the book was published—and not by a university press. And how original was The Dialogue anyway? Was Galileo simply proving Copernicus’s ideas?
Galileo might not be awarded tenure today under the ever-higher publication requirements imposed by colleges and universities. Many tenured professors ask whether they could have cleared the publication hurdle that their junior colleagues must now jump. While faculty and administrators seek to apply tenure criteria fairly and consistently over time and among tenure candidates, they do not succeed all of the time.
The Connecticut Supreme Court recently addressed the application of publication criteria to tenure decisions in a lawsuit between Trinity College and Leslie Craine, a former assistant professor of chemistry, who was denied tenure in 1993 despite a unanimous departmental recommendation. She sued Trinity in 1995. In 1999 the case caught the attention of the media when a jury awarded Craine $12.7 million in damages, which seems to be the largest award rendered in a tenure case. In the end, the unanimous court upheld part of the jury verdict, finding "that the [college] breached the parties’ contract [established by the faculty handbook] by indicating that [Craine] would be evaluated according to one standard but denying tenure because of her failure to meet a different one." The court, however, overturned part of the jury verdict, ruling that insufficient evidence existed to support the jury’s finding of gender discrimination, thereby significantly reducing her damages.
The Trinity faculty handbook provided that the school is obliged to "indicate" to a candidate "as clearly as possible" any areas that require "special attention," and that a negative tenure decision must be based on failing "to meet the standards of improvement" based on rank and delineated in the last reappointment letter. Craine’s last reappointment letter encouraged her "to continue along the lines" she had established at the college, although it also suggested that she focus on publishing the results of her original research.
During her last reappointment review, Craine’s colleagues had determined that she was on track for tenure. Two years later, the department voted that she should receive tenure. The college’s appointments and promotions committee, however, voted against Craine, because it found that she had "only one published article in a refereed professional journal." Craine argued that her article was published in her discipline’s most prestigious publication and that its substance could have been published as several articles. Craine, with the support of the chemistry department, sought reconsideration by the committee. According to the Chronicle of Higher Education, the department wrote that "[t]o change the rules between the second and the final [tenure review] is fundamentally unfair."
On appeal, the court found that the college had used a "shifting standard" when it emphasized the quantity of her publications as a basis for tenure denial: "The quantity of publication was emphasized during the tenure denial but was not clearly emphasized at any time prior thereto." Accordingly, the court asserted that "with different notice, Ms. Craine might have performed differently."
In so ruling, the court opined that academic freedom did not inoculate the institution’s decision from judicial review: just because the "employment relationship is in an academic setting does not mean that the [college] has absolute discretion on its employment decisions. Our deference extends only as far at the employment decision is based on an academic judgment."
One anonymous assistant professor recently wrote in the Chronicle of Higher Education,"Teaching? Research? Service? Baking? With assessment criteria in flux from institution to institution or even department to department, the untenured must ‘feel’ their way around, working intuitively through the academic maze." The challenge for tenured faculty and administrators is to communicate scholarship criteria consistently and apply them fairly so that junior faculty do not get lost in the academic maze that we may have inadvertently created.
Donna Euben is AAUP counsel.
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