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Legal Watch: Misconduct Accusations in Tenure Reviews
By Donna R. Euben
While the tenure application of Philip Tacka, an assistant professor of music at Georgetown University, was pending, he learned that an outside evaluator had accused him of plagiarism in her critique of his scholarship. The faculty handbook at Georgetown provides that plagiarism charges be investigated by a research integrity committee, and Tacka requested that his tenure consideration be delayed until after such investigation. Nevertheless, the departmental committee convened and rejected his tenure bid, as did the promotion and tenure committee. Only after Tacka received the negative tenure decision was the plagiarism charge forwarded to the research integrity committee, which found no merit to it. A grievance panel reached the same conclusion. A year later, Tacka was awarded tenure.
What should happen when allegations—of sexual harassment or plagiarism, for example—arise about candidates during their reviews for tenure, promotion, or reappointment? The academic and legal issues are complex, and the outcome relies, to a great extent, on institutional policies.
A federal district court decision recently confronted the intermingling of these issues when Tacka sued the university. He raised a number of legal claims, including breach of contract. He argued that the institution failed to follow its own faculty handbook, which is an enforceable contract under District of Columbia law, in two ways: by failing to refer the plagiarism charge immediately to the research integrity committee, and by dealing with the misconduct allegation in his tenure review before forwarding the claim to the research integrity committee. The administration responded that "neither the handbook nor common practice at Georgetown University requires suspension of a tenure review process when an allegation of academic dishonesty, such as plagiarism, is received."
In allowing the professor's suit to continue, the court found the handbook "clear in requiring allegations of plagiarism to be addressed through the exclusive mechanism of the Research Integrity Committee." At the same time, the handbook was "less clear—and . . . in fact silent—on the issue of whether a tenure review must be halted when an allegation of plagiarism is received." The court opined, however, that "[a]dherence to the proper procedure likely would have resulted in suspension of the tenure review process." In so reasoning, the court found the conclusions of the committee and grievance panel "germane and helpful" in interpreting the ambiguous faculty handbook provisions.
Few courts have attempted to untangle tenure review from misconduct charges like those raised by Tacka. In 1998, for example, the Minnesota Supreme Court did not examine the appropriateness of a tenure review process when two misconduct claims "and an earlier allegation of misconduct" were included in a candidate's tenure file. The vice president ultimately denied tenure to Calvin Kobluk, an assistant professor at the University of Minnesota's College of Veterinary Medicine, based on the "alleged misconduct." Instead, the court addressed the application of the attorney-client privilege.
Similarly, in 1994 the court of appeals in Texas reviewed a case involving the intermingling of tenure and misconduct allegations when faculty reviewing the tenure file of Maurice Rhynhard, a faculty member in the music department of Sam Houston State University, asked the department chair about "rumors of sexual harassment charges" and "class complaints of a sexual nature." In this case the court did not directly confront the tenure review process, but instead ruled that the department chair was immune from a defamation suit by Rhynhard.
An AAUP investigation of a case at the University of Southern California in 1996 provides some guidance to institutions seeking to separate tenure reviews from misconduct charges. The Association's investigating committee considered the pending reappointment of a professor who was charged with misconduct, and stated that "[i]t would be irresponsible for a university to confine itself to the letter of the stated criteria for reappointment, ignoring allegations of academic misconduct." At the same time, the committee found that "[a]ppropriately careful assessment" required that the faculty member be provided with specific allegations in writing, adequate time to respond to those charges, and an opportunity to appear before the decision-making committee. In the end, the best policy should seek to ensure that academic appointment decisions are not improperly tainted with unproven allegations of misconduct.
Donna Euben is AAUP counsel.
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