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Legal Watch: Post-Tenure-Review Blues?
By Donna R. Euben
Post-tenure-review policies are on the increase. By 2000, thirty-seven states had established some form of post-tenure review. Tenured faculty generally have not fared well in the few court challenges to post-tenure-review policies. Nevertheless, some best practices can be teased out from existing case law and AAUP policy to better enable those institutions with post-tenure-review policies to enforce them constructively and, perhaps, minimize their legal risks.
Post-tenure reviews should be conducted by a professor’s colleagues, since they will be most familiar with his or her teaching and scholarship. Courts appear to rely on faculty peer reviews in upholding the post-tenure-review decisions of institutions. In one such case, Steven Wiest, a tenured associate professor in the Department of Horticulture, Forestry, and Recreation Resources at Kansas State University, unsuccessfully challenged the termination of his research appointment. Wiest had received three unsatisfactory annual evaluations from his department chair and peers and failed to cooperate with a plan designed to help him meet his obligations. In upholding the decision of the university, the state court observed that a “faculty committee [made] up of his equals . . . evaluated him lower than did the department head.” The court further noted that Wiest was afforded a hearing before a faculty committee, which unanimously sustained the dismissal. Accordingly, the lower court found “substantial competent evidence” to support Wiest’s dismissal, and the state appellate court upheld that decision.
Post-tenure-review policies should be aimed at professional development rather than discipline. In Johnson v. Colorado State Board of Agriculture, a tenured professor appealed a ruling in favor of the university to state appellate court but lost because the court found that his institution’s policy “allow[ed] for the design of a professional development plan rather than discipline.” The professor had received unsatisfactory reviews in two consecutive years, and he sought a five-year delay in implementation of the post-tenure-review policy, arguing that the policy retroactively modified his tenure and was unconstitutional. The court upheld the policy, finding that faculty are always subject to review and discipline, and that the plain meaning of the policy provided “no language” to infer a five-year waiting period for current tenured faculty. The court reasoned that no waiting period was anticipated because the policy’s purpose was “to facilitate continued professional development, refocus professional efforts when appropriate, and to assure that faculty members are meeting their obligations to the university.” Thus, the court found that the post-tenure review was merely a procedural change that “does not take away any vested right, and it imposes no new obligations or duties.”
Post-tenure-review policies should also be consistent with other policies and procedures. A state appellate court found that California State University violated the faculty collective bargaining agreement when it temporarily demoted for five years Suleman Moosa, a full professor of finance in the college of business, to the rank of associate professor. The administration had complained about Moosa’s “unprofessional conduct and/or the failure to refuse to perform the normal and reasonable duties of his position.” The state personnel board had found that only one of the claims against Moosa was supported by substantial evidence: a “failure to comply with his dean’s directive to develop and submit an ‘Improvement Plan.’” The board acknowledged that Moosa’s refusal to cooperate in developing such a plan was part of a “battle” that “was a microcosm of [a] larger ideological struggle concerning educational policy.” Nevertheless, the board found against Moosa, although it modified the demotion from five years to one year. On appeal, the court ruled that while substantial evidence supported the board’s finding on Moosa’s failure to cooperate with the improvement plan, “the dean’s directive was inconsistent with the terms of the collective bargaining agreement.” The court emphasized that the agreement “authorizes only a discussion of the professor’s strengths and weaknesses, ‘along with suggestions, if any, for his/her improvement.’”
In Post-Tenure Review: An AAUP Response, the AAUP recommends that evaluation systems are best directed toward constructive measures for improvement. To achieve that goal, post-tenure-review policies should be developed and implemented by faculty members, and resources should be allocated to support the professional development of faculty under such policies. Such policies should provide an opportunity for faculty members to comment and respond to such evaluations, and an appeals procedure by which faculty may challenge evaluations. Successful post-tenure-review policies should also reaffirm an institution’s commitment to academic freedom, tenure, and due process and educate participants, including department chairs and deans.
Donna Euben is AAUP counsel.
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