By Donna R. Euben, AAUP Counsel
I. The Law Applicable to Private College Employment Relationships
There are several sources of law applicable to colleges and universities. The critical distinction is between public and private higher education institutions.
Federal Constitution: The federal Constitution was designed to limit the exercise of government power only, and therefore it does not limit private employers, such as private colleges, from infringing on professors' constitutional freedoms, such as freedom of speech and due process. (These rights can be protected, however, through contracts between professors and their institutions, as discussed below.)
But see Craft v. Vanderbilt University, 940 F. Supp. 1185 (M.D. Tenn. 1996): The court ruled that a private university's participation with state government in radiation experiments in the 1940s might constitute "state action" for constitutional standards to apply.
Federal Laws: The inapplicability of constitutional protections does not leave professors unprotected at private higher education institutions. Private colleges must comply with many federal laws, such as federal anti-discrimination law (Title VII of the Civil Rights Act). If the private institution receives any federal funds, it must comply with additional federal laws, such as Title IX (sex discrimination).
State Laws: Private colleges are also covered by state laws. So, for example, state anti-discrimination and contract laws apply to private higher education institutions. And so, a faculty handbook, which delineates due process and academic freedom rights, may be a source of important contractual (as opposed to federal constitutional) protections for professors at private colleges. See AAUP Legal Technical Assistance Guide, Faculty Handbooks at Enforceable Contracts: A State Guide (1999 ed.)
State Constitutions: Some state constitutions provide protections to private college professors. For example, the California Constitution protects the free speech of public and private employees, including professors at public and private institutions.
Institutional Policies: There are several internal sources of law of which to be aware: institutional rules and regulations; letters of appointment; academic custom and usage; and, where applicable, collective bargaining agreements.
II. The Special Role of Department Chairs
Twenty years ago, a discussion of legal issues for department chairs would not have been considered, let alone offered. But there is a changing legal landscape as society, including faculty, becomes more litigious. Department chairs are on the front line in applying institutional policies in a fair, equitable and compassionate fashion to ensure the vitality of the department and the institution, and the high quality of education for students.
"The word chair is ancient and is a phonetic derivative of cathedra, the cathedral being the seat of the bishop in his church. The word has many meanings, but in academia . . . it meant a seat of authority for the professor who from the chair, would sonorously deliver his lecture. The word chaise meant a chair with wheels. Considering the current half-life of chairpersons, as well as their travel agenda, one wonders whether chaise might not be the appropriate term."
John Romano, "The Battered Chair Syndrome," Archives of General Psychiatry 371-74
Generally, courts are deferential to colleges and universities. They are uninterested in "second guessing" academic decision-making or becoming "super-tenure committees." Nevertheless, courts will examine cases in which institutions fail to follow their own policies and procedures, or where a colorable claim of discrimination is alleged.
The following principles are helpful in guiding department chairs in dealing with employment issues:
Department chairs are agents of the institution.
Know your institution's policies.
Apply institutional policies in a consistent, fair, equitable, and timely fashion. It is critical that you do not apply institutional policies in an arbitrary or capricious way.
III. Faculty Recruitment Legal Issues
A. Some Discrimination Laws
There are a number of, at times overlapping, federal discrimination laws that apply to private higher education institutions. The rationale underlying these laws is that characteristics such as race, gender or age are irrelevant for appointment decisions, including hiring and promotion. The application of discrimination laws to the higher education context is complex because colleges are not typical workplaces. For example, it is often difficult for a professor alleging discrimination to establish different treatment than "similar" faculty members. Is an art history professor "similar" to a studio art professor? Or, for example, who is responsible for the alleged discriminatory conduct, where faculty peers play a primary role in recommending candidates for hiring, promotion and tenure? The Department? The Department Chair? The P&T Committee? The Dean? The Board of Trustees?
Here is a brief overview of some of the anti-discrimination laws that apply to most private higher education institutions:
Title VI of the Civil Rights Act: Title VI prohibits discrimination on the basis of race, color, or national origin by public and private education programs and activities that receive federal funds.
Title VII of the Civil Rights Act: Title VII prohibits discrimination in employment based on an individual's race, gender, color, religion, sex or national origin.
Title IX of the Education Amendments: Title IX prohibits sex discrimination in education programs and activities by public and private educational institutions that receive federal funds.
Salary Discrimination and the Equal Pay Act: Both the Equal Pay Act (EPA) and Title VII prohibit sex discrimination in compensation. The critical issues are, usually, whether the jobs are "equal" or "substantially similar," and whether an exception applies to allow a salary differential, such as a "differential based on any other factor other than sex."
Denny v. Westfield State College, 669 F. Supp. 1146 (D. Mass. 1987): A federal district court ruled that a college discriminated against women based on salary. The evidence included an allegation that the college president said that men needed higher salaries because they were supporting families. The college was also unable to explain existing salary differentials based on objective rationales, such as discipline, market factors, or performance.
The Americans with Disabilities Act: The ADA prohibits discrimination against individuals with disabilities. Individuals are "qualified" for the position, with or without a reasonable accommodation, if they can perform the essential functions of the position. If a professor, at hiring or during an appointment, is a "qualified individual with a disability," the college must provide a reasonable accommodation unless the accommodation presents an "undue hardship" for the college. There is also The Rehabilitation Act of 1973.
The Age Discrimination in Employment Act: The ADEA prohibits age discrimination with respect to persons who are at least 40 years old. In 1986 the law was amended so that, as of January 1, 1994, mandatory retirement for faculty, whether tenured or not, is unlawful.
Civil Rights Act, Iowa Code Section 216.1: This state law applies to public and private colleges, and prohibits discrimination based on age, race, creed, color, sex, national origin, religion or disability. It also prohibits discrimination based on pregnancy, childbirth, and related medical conditions. Employers must grant unpaid leave for the period of temporary disability due to pregnancy or childbirth for 8 weeks, whichever is less.
B. Seeking Diversity: The Current Legal Situation
Ever since Justice Powell's opinion in the Supreme Court's 1978 ruling in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) stated that a university could take race into account as one among a number of factors in student admissions for the purpose of achieving student body diversity, affirmative action programs in student admissions and financial aid, as well as in faculty employment, have largely been based on diversity.
Under Title VII of the Civil Rights Act (described above), any consideration of race or national origin in hiring or promotion decisions at colleges are subject to "strict scrutiny." (Consideration of gender is subject to a less stringent standard, that of intermediate scrutiny.) Under strict scrutiny analysis, courts have recognized two compelling interests that can justify consideration of race or national origin: (1) remedying present effects of past discrimination at a particular institution; and (2) diversity as it contributes to the learning environment. Some critical factors used in analyzing race-conscious employment decisions include the following:
(1) the number and weight of criteria used other than race;
(2) the degree to which slots appear to be reserved as "quotas" for members of specific minority groups (which are generally illegal); and
(3) the burden placed on non-minorities by the particular type of decision (e.g., hiring v. layoffs).
University and Community College System of Nevada v. Farmer, 930 P.2d 730 (Nev. S. Ct. 1997), cert. denied, (1998): The United States Supreme Court declined to review a faculty employment case in which the Nevada Supreme Court upheld the University's right to consider race as a factor to diversify its faculty. The plaintiff had been a finalist for a position in the sociology department in 1991, when the University instead hired an African-American and paid him more than the posted salary range. At that time, only 1% of the University's faculty members were black, and the University maintained a "minority bonus program" that allowed a department to hire an additional faculty member if it first hired a minority. One year later, the sociology department filled the additional slot created by the minority bonus program by hiring the white female professor. She was offered $7,000 less per year than the black male when he was hired.
The female professor filed a suit claiming that the University violated the Equal Pay Act by paying her less than a comparably qualified male peer, and Title VII by basing its hiring and pay decision on race. The Nevada Supreme Court overruled a jury verdict in favor of the plaintiff, relying on Bakke, to find that the University of Nevada Reno had a "compelling interest in fostering a culturally and ethnically diverse faculty. . . . A failure to attract minority faculty perpetuates the university's white enclave and further limits student exposure to multicultural diversity."
Hill v. Ross, 183 F.3d 586 (7th Cir. 1999): A federal appellate court held that a state university may not require that each department's faculty mirror the gender makeup of the pool of doctoral graduates in its discipline. The court found that such a policy is not narrowly tailored to remedy past sexual discrimination and violates Title VII. The suit was brought by a male psychology professor, recommended for a tenure-track position, whose appointment was blocked because a dean said that the department "needs 3.23 women to reach its target" of 62% women in the department.
C. Contractual Issues
Faculty members almost always have a contract or letter of appointment. Those contracts or letters are enforceable under state law. Sometimes those letters of appointment also "incorporate by reference" the institution's faculty handbook.
In many states, including Iowa, faculty handbooks can also be enforced as part of that employment contract. The issue is whether a faculty handbook--which includes policies, rules, and procedures under which professors work--also establishes a contractual relationship between a professor and the institution. The issue usually arises in the context of a breach-of-contract claim, and the question is whether the faculty handbook is part of the employment contract between the professor and the institution.
Taggart v. Drake University, 549 N.W.2d 796 (Iowa 1996): The Iowa Supreme Court ruled that the University did not breach its employment contract with a faculty member who was denied tenure. The court stated that a faculty handbook may rise to an enforceable contract under three conditions: "(1) document must be sufficiently defined in its terms to create an offer; (2) document must be communicated to and accepted by employee so as to create acceptance; and (3) employee must continue working, so as to provide consideration." While the procedural rights in the handbook were sufficiently specific to create a contract, the court found that the University followed the procedures sufficiently to deny the professor's breach-of-contract action.
University of Dubuque v. Faculty Assembly, District Court of Iowa (June 23, 1999): The Iowa state trial court ruled that the University faculty handbook "constitutes a unilateral employment contract between the University of Dubuque and individual faculty members, the terms and conditions of which are incorporated into existing letters of appointment and grants of tenure, and are legally binding and enforceable upon both parties."
Such laws reinforce the importance of faculty participation in governance, including working with the administration on revisions to faculty handbooks.
D. The Search Process
The search process involves policy and legal considerations by faculty and administrators. AAUP's The Ethics of Recruitment and Faculty Appointments delineates some of the key standards of the professorate in faculty search efforts "with the expectation that they will provide a foundation for appropriate practices." In so doing, the AAUP Statement emphasizes the need for a clear vacancy announcement that is widely distributed to all potential candidates with "at least thirty days from the first appearance of the announcement to submit their applications." Remember that efforts to expand the pool of potential candidates is legal; quotas in hiring are not. See generally Jonathan R. Alger, "Minority Faculty and Measuring Merit: Start by Playing Fair," Academe (July-August 1998).
1. Drafting the Job Description
Draft clear job-related criteria for the advertised position. Identify minimum and optimum academic degree and experience requirements. At the same time, avoid delineating overly stringent criteria that are not necessary for the position. Consider non-race based criteria such as the ability to work with diverse students or colleagues, or experience with a variety of teaching methods and curricular perspectives. Think about possibilities for interdepartmental/interdisciplinary work, which could broaden the potential applicant pool. Consult with campus office charged with enforcing non-discrimination/ affirmative action provisions. Decide what materials--cover letter, vita, list of references--are necessary for a complete application.
2. Advertising for Candidates
Draft a list of professional publications and media outlets for purposes of broad outreach. In addition to traditional outlets and your own formal (disciplinary, professional associations) and informal networks, include journals and periodicals that reach minority and female prospective candidates. Some examples include:
University Faculty Voice
Black Issues in Higher Education
The Hispanic Outlook in Higher Education
Consult with the college's affirmative action office, and colleagues for further ideas about attracting a diverse pool of candidates. Designate a deadline either by postmark or receipt of materials, or indicate date on which screening will begin.
3. Appointing and Training the Search Committee
Often committees tend to choose candidates who are like themselves and meet their personal definitions of "merit." Make an effort to have a diverse search committee. Training possibilities for a Search Committee include meeting with the college's affirmative action officer or other campus advisor, or developing clear, written guidelines for searches. See The Affirmative Action Office, Penn State, Getting Results: Affirmative Action Guidelines for Searches to Achieve Diversity (1997) (hereafter Getting Results).
4. Screening the Candidates' Dossiers
Draft fair and objective criteria for review of each applicant's materials. Prepare candidate evaluation forms with job-related reasons used to evaluate the candidates' qualifications based on application material. Avoid allowing any individual Search Committee member to eliminate any candidate; seek the judgment of as many Search Committee members as possible about each candidate. Recommend interviews for those who meet the advertised minimum qualifications only. Provide full analysis of the most qualified female and minority candidates, and draft clear job-related assessments for them if they are not recommended for campus interviews. Be aware of how historically black colleges and universities (HBCUs) and other minority-serving institutions fare in graduate school rankings. Such institutions are major sources of graduate students in a variety of fields.
5. Interviewing the Candidates
Draft fair and objective interview questions for each interviewer to cover in each interview. Draft candidate evaluation forms with job-related reasons used to evaluate the candidates. Review each candidate's skills and abilities for strengths and weaknesses. Avoid allowing any individual Search Committee member to eliminate any candidate; obtain the judgments of as many Search Committee members as possible about each candidate. Try to have the entire Search Committee review and discuss the candidacy of all candidates.
E. Interviewing the Candidates: Permissible and Impermissible Questions
Professors on search committees often want to ask certain questions to a potential candidate, but feel uncertain about the legality of doing so. Accordingly, they may avoid a questionable topic altogether, thereby losing some potentially pertinent information that might respond to a concern. There are ways to ask questions to gather important information and to avoid legal violations. It is important to ask questions that are job-related to avoid unlawful discrimination. See Ann H. Franke, "Questions NOT to Ask Candidates During Interviews," Academe (May-June 1994). For example, if the Search Committee is concerned about the availability of potential candidates to teach evening and weekend courses, ask all candidates the question about whether they are available to teach evening and weekend courses, not just women who may have children or be of child-bearing age, or men wearing yarmulkes. Id.
"The Chair of the Department conducting job interviews mentioned to me that he was a particular age, which was exactly the same as mine. He described the Department as one which would be hiring a lot of 'young' faculty over the next few years, as he and some colleagues took early retirement. He obviously thought that I would not fit into the younger department that would eventuate within a few years."
Anonymous Penn Graduate Student comment, posted on the Web Page of The Chronicle of Higher Education (9/99).
There are a number of materials available that set forth permissible and impermissible inquiries during the job interview and before the offer to a candidate is made. See the following websites:
Getting Results 6-8;
Rice University Human Resources, How to Hire Handbook: Permissible Interview and Pre-Employment Questions (October 1997);
Project on the Status and Education of Women, Association of American Colleges, It's All in What You Ask: Questions for Search Committees to Use (February 1988);
Office of General Counsel, The Catholic University of America, Employment: Interview Guidelines (January 1998);
College and University Personnel Association, "Do's and Don'ts for Interviewers," ADA: Compliance Manual for Higher Education: A Guide to Title I 81-86 (1992);
" Bureau of National Affairs (BNA), "EEOC Explains Legal Boundaries of Job Questions under ADA"; and
BNA, "Interviewing Job Applicants with Disabilities".
F. Trouble Spots and Practical Suggestions Regarding Hiring of Faculty
1. Who has the Authority to Make the Offer?
Be familiar with institutional policies and procedures, and follow them carefully regarding who can make the offer to the selected candidate.
Johns Hopkins University v. Ritter, 689 A.2d 91 (Md. App. 1995), cert. denied, 694 A.2d 950 (Md. 1997): The University recruited a married couple to help restore its pediatric cardiology program. The chair of pediatrics, who headed the search, wrote to the couple that they would be "coming on board as full tenured professors." He allegedly sent a copy of the University's personnel handbook. The candidates replied in their acceptance letter that they would be "proposed" for appointment. They allegedly received repeated assurances that their appointments would be "rubber stamped." As the professional appointment process ground on, relations deteriorated between the two new professors and the others in the department, and the University decided to terminate the relationship.
The professors filed suit, and a 15-day trial resulted in a jury verdict of $822,800 in the professors' favor. A state appellate court overturned that jury award, ruling that the chair of pediatrics lacked the authority to bind the University to a promise of tenure, including to any promise that the tenure procedures set forth in the University handbook would be treated as mere formalities. The court stated: "when a tenure process is established in writing and is communicated to a prospective appointee, a subordinate official may not circumvent that process and bind the college to a tenure arrangement."
2. Avoid Oral Promises
Communicate job offers in writing.
Kulm v. Montana State University-Bozeman, 948 P.2d 243 (Mont. 1997): A professor responded to an ad in The Chronicle of Higher Education for a position at MSU for up to 5 years. He accepted a verbal offer, made a 2-year commitment, resigned from his position at Texas A&M, and moved his family to Montana. After one year he was not renewed for reasons unrelated to his performance. Professor Kulm sued for fraud, negligent misrepresentation, and breach of the duty of good faith and fair dealing. The Montana Supreme Court ruled that the state's Wrongful Discharge from Employment Act barred the professor's claims.
3. Why Check References?
It is important to check the references of final candidates. Draft questions to use to check each candidate's references, and follow them. An increasing amount of litigation is arising that involves misrepresentation of credentials in the academic world. This can be a source of public embarrassment, professional disappointment, as well as, at times, legal liability.
An associate director of laser programs at Lawrence Livermore National Laboratory recently resigned after it was revealed that he lacks a Ph.D. The researcher resigned for "personal reasons" after officials received copies of an anonymous letter that said he never received a doctorate. See Robin Wilson, "Laser Expert Quits Post at Lawrence Livermore After He is Found to Lack a Ph.D," The Chronicle of Higher Education (Sept. 1, 1999).
The president of Albright College was accused of having included misleading statements about his academic credentials and publishing record on the resume he submitted to the college. See Julianne Basinger, "Questions Raised About Academic Credentials of Albright College's President," The Chronicle of Higher Education (Oct. 15, 1999).
Another recent example from an anonymous posting on a higher education listserve:
A private institution issued a contract to an adjunct professor to teach two business law courses in the Spring. The adjunct professor had taught those and other courses for a few years at the school. The institution learned that the professor misrepresented her credentials, indicating that she was licensed to practice law, when, in fact, she had "resigned" her law license nearly 15 years ago pending disciplinary action by the state Bar. On the application, she signed a statement that read: "I understand that false statements on this application shall be considered sufficient cause for dismissal." After an investigation, the school terminated the professor's contract, concluding that under its handbook adequate cause included misrepresentation as to on and off campus conduct that "substantially impairs the faculty member's ability to perform his or her responsibilities."
4. Treatment of Part-Time and Adjunct Candidates for Newly Available Tenure-Track Positions
An increasing number of institutions rely for teaching on visiting, part-time and adjunct professors. These faculty are growing more active in litigation. Ann Franke, "The Legal Complaints of Visiting and Adjunct Faculty," Employment Action 1 (Summer 1998). A common complaint is that the institution promised them a tenure-track position that did not materialize. Id. at 5. Even if no promises are made, such professors often feel that "their proven record of service to the institution should weigh in their favor when a tenure-track position opens up." Id. at 7.
Good practice would include notifying non-tenure-track faculty promptly about any vacancies, and advising them about application procedures: "The best approach is to grant interviews to internal candidates who possess the stated qualifications and who have given good service in their current positions. Search Committees should avoid viewing non-tenure-track faculty as second class, but rather should evaluate them on their merits." Id.
AAUP recommends that all full-time service performed at an institution in the rank of instructor or higher be counted towards the probationary period. AAUP, 1940 Statement on Academic Freedom and Tenure; AAUP, On Crediting Prior Service Elsewhere as Part of the Probationary Period (1978).
IV. Faculty Promotion and Tenure: Legal Trouble Spots and Practical Suggestions
Like hiring decisions, tenure and promotion decisions should be handled in a fair, equitable and timely fashion. Courts tend to grant higher education institutions much deference in their academic decisionmaking, unless evidence exists of discrimination or when decisions are arbitrary and fail to follow established institutional procedures. The criteria at most higher education institutions is well established, and requires an acceptable level of teaching, research and service.
A. Apply Promotion &Tenure Procedures in a Consistent Fashion
Department chairs must know their institutions' P&T procedures, and follow them in a fair, equitable, and timely fashion. The use of letters of reference provides just one helpful example of the importance of consistency.
A federal district court noted that Kansas State University illegally departed from its institutional rules on external letters: "The tenured faculty voted without having reviewed letters from faculty outside of the school (outside reviewers), which was the school's practice, although the school's written procedures provide for such information to be available for review prior to voting." El-Ghori v. Grimes, 23 F. Supp.2d 1259
(D. Kan. 1998).
A state appellate court ruled that the University of Minnesota discriminated against a female math professor when it solicited more than 40 external review letters about her; the usual number would have been 6 to 10. Ganguli v. University of Minnesota, 512 N.W. 2d 918 (Minn. App. 1994), aff'd, 1996 Minn. App. LEXIS 1347 (Minn. Ct. App. Dec. 3, 1996), review denied, 1997 Minn. LEXIS 69 (Minn. Jan. 21, 1997).
B. Impact of Criteria on Female and Minority Tenure Candidates
At the same time, it is important to recognize that traditional tenure criteria can sometimes have a disparate impact on minorities and women candidates if viewed too rigidly or narrowly So, for example, in terms of service, be sensitive to the often heavy burdens borne by minority and women faculty to serve on committees, advise and mentor students, and so on. Similarly, consider publications in interdisciplinary journals as well as co-authored articles. Many women and minority professors engage in such collaboration, which can be helpful for research, teaching, and institutional service.
C. The Issue of Collegiality
Be wary of using this criteria as a smokescreen for conformity--whether it be in terms of ideology or disciplinary approach, or gender, sex, race, and so on.
"The current tendency to isolate collegiality as a distinct dimension . . . poses several dangers. Historically, collegiality has not infrequently been associated with ensuring homogeneity, adherence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of collegiality may also threaten academic freedom. . . . A fundamental absence of collegiality will no doubt manifest itself in the dimensions of scholarship, teaching, or, most probably, service. . . . [Accordingly,] an absence of collegiality ought never, by itself, constitute a basis for nonrenewal, denial of tenure, or dismissal for cause. . . ."
AAUP, "On Collegiality As a Criterion for Faculty Evaluation," Academe (September-October 1999.)
University of Baltimore v. Iz, 716 A.2d 1107 (Md. App.), cert. denied, 719 A.2d 1262 (Md. 1998): A professor sued the University for denial of tenure and promotion based on discrimination (gender and national origin--she is Turkish), and challenged the application of collegiality as a factor because it was not expressly listed among the University's tenure criteria. The court ruled that collegiality was a valid consideration, even though it was not listed, because collegiality played an essential role in categories of teaching and service. The court, however, "acknowledge[d] . . . that collegiality may not be used as a pretext for discrimination.
This criteria--whether explicit or implicit--is subjective and can easily reinforce subtle and not-so-subtle biases in promotion decisions.
D. Teaching the Promotion and Tenure Process
From the outset, department chairs should give new faculty members an explanation of the requirements for reappointment and tenure.
"Probationary faculty members should be advised, early in their appointment, of the substantive and procedural standards generally accepted in decisions affecting renewal and tenure. Any special standards adopted by their particular departments or schools should also be brought to their attention."
AAUP, Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments (1989).
Some faculty organizations--AAUP chapters, faculty senates, committees "of the whole"--provide annual campuswide lunchtime sessions for junior faculty to review P&T procedures, circulate "model" (and redacted) tenure dossiers, and so on.
E. The Need for Accurate Probationary Period Evaluations
One of the most troublesome areas for department chairs is the evaluation process. It is critical that department chairs be accurate and compassionate in reporting on a tenure candidate's process. As Professor John B. Conway explained to other department chairs about evaluations of tenure-track faculty:
"On humanitarian and professional grounds, junior faculty should get a clear understanding of their status long before tenure is considered.
It is the head's solemn duty to report to the candidate any bad news that comes out of the retention review. In a serious situation, the candidate should be asked to respond in writing. No one likes to communicate bad news. (Well, almost no one.) But it is absolutely essential that you do this, especially now. A head who puts on kid gloves at such a time is doing no one a favor.
There is the legal question, but there is also your obligation as a human being and the unofficial mentor of this young colleague. Do you really want them to spend the next few years thinking there is nothing to correct? That what they have been doing is leading toward tenure? And meantime the faculty is anticipating a change and will conclude, when it fails to appear, that this person did not heed a warning and, hence, is unworthy of tenure. I have known of cases where a department head did not pass on the faculty's concerns. When tenure was eventually denied, the candidate was shocked, the faculty discovered their warnings were not transmitted, and the head's prestige and reputation suffered. . . . .
Nice young mathematicians do not invite harsh judgments, but your job, and that of your colleagues, is to promote the well being of the university. It is not to promote the sociability of the department."
American Mathematical Society, On Being a Department Head: A Personal View 43-48 (1991).
In the recent Professor Craine tenure denial litigation, which resulted in a $12.7 million jury verdict against Trinity College, the role of evaluations by the department was one, of many, issues:
At Trinity College in Connecticut, the chemistry department had supported the tenure candidacy of Professor Leslie Craine. When the college's P&T committee voted against the professor, the department wrote it seeking reconsideration. The Chronicle of Higher Education reported that the department blamed itself for not providing better guidance to Craine. Two years before the tenure decision the department had evaluated whether Craine was on target for tenure, explaining to her the publication requirement. Two years later, the department found that she had satisfied the requirement. After the negative tenure decision by the P&T committee, the department wrote to it: "To change the rules between the second and the final [review assessing her progress towards tenure] is fundamentally unfair." Courtney Leatherman, "$12.7 Million Judgment in Tenure Case Leaves Many Academic Experts Stunned," The Chronicle of Higher Education (Feb. 5, 1999).
Another example about the importance of accurate evaluations:
Ganguli v. University of Minnesota, 1996 Minn. App. LEXIS 1347 (Dec. 3, 1996): In this tenure denial case, the professor argued that the department failed to inform her of her lack of progress towards tenure during her annual performance evaluations. A faculty panel of the University had reviewed those evaluations "and found that several of the reviews raised concerns regarding Ganguli's scholarly activity." The court upheld the faculty panel's findings, and found no violation of the tenure policy, as alleged by the professor.
F. The Need for Timely Notice
Time periods for notice of nonreappointment should be carefully followed. AAUP recommends the following:
"Notice of nonreappointment, or of intention not to recommend reappointment to the governing board, should be given in writing in accordance with the following standards:
(1) Not later than March 1 of the first academic year of service, if the appointment expires at the end of that year; of, if a one-year appointment terminates during an academic year, at least three months in advance of its termination.
(2) Not later than December 15 of the second academic year of service, if the appointment expires at the end of that year; or, if an initial two-year appointment terminates during an academic year, at least six months in advance of its termination.
(3) At least twelve months before the expiration of an appointment after two or more years in the institution."
AAUP, Standards for Notice of Nonreappointment (1963).
G. Peer Review Privilege?
Another issue arising in P&T decisions is whether courts or administrative agencies may compel faculty members or their institutions to disclose confidential academic information if such information is relevant to issues in litigation. This issue tends to arise when requests are made to disclose the views of individual evaluators of faculty performance at the time that reappointment, promotion, or tenure decisions are made.
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990): A professor in the University's business school sued the University for race, sex, and national origin discrimination in her tenure denial. The EEOC had subpoenaed the confidential peer evaluations on which the University had relied to make its negative decision. The University, while providing much of the information requested by the EEOC, refused to turn over confidential letters written by evaluators, letters from the department chair, and accounts of faculty deliberations. Eventually, the case went up to the United States Supreme Court, which ruled that an institution, when confronted by a subpoena from the EEOC, must produce the relevant, requested information, whether or not the institution has promised to keep it confidential.
See also AAUP, Access to Faculty Personnel Files (1992). (In addition, some "open record" laws apply to public institutions (and some private institutions as well).)
Recently, a letter in one tenure file became public through the legal process of discovery in a different tenure case:
At Trinity College in Connecticut, Professor Craine relied on a letter in another tenure file to help establish her gender discrimination claim against the administration for denying her tenure. A senior historian had written a "confidential" letter to the dean of faculty questioning whether a male historian was evaluated less rigorously than a female historian during their prior tenure candidacies. The female scientist sued, comparing her qualifications to that of the male historian. The "confidential" letter from the senior history professor became a "smoking gun" in the litigation. Courtney Leatherman, "$12.7-Million Judgment in Tenure Case Leaves Many Academic Experts Stunned," The Chronicle of Higher Education (Feb. 5, 1999).
Generally, department chairs can take only those actions or make those personnel decisions for which they have the authority to avoid personal liability. See generally J. Douglas Toma & Richard L. Palm, The Academic Administrator and the Law: What Every Dean and Department Chair Needs to Know 22-25 (1999). AAUP recommends that
"colleges and universities adopt a comprehensive general policy on legal representation and indemnification for members of their faculties. The policy should ensure effective legal and other necessary representation and full indemnification in the first instance for any faculty member named or included in lawsuits or other extra-institutional legal proceedings arising from an act or omission in the discharge of institutional or related professional duties or in the defense of academic freedom at the institution."
See AAUP, Institutional Responsibility for Legal Demands on Faculty (1998).
VI. Some Resources for Department Chairs
Bennett, John B. and David Figuli. Enhancing Departmental Leadership: The Role of the Chairperson. Phoenix, AZ: American Council on Education/Oryx Press, 1990.
Creswell, John W. et al. The Academic Chairperson's Handbook. Lincoln, NE: University of Nebraska Press, 1990.
Diamond, Robert M. Serving on Promotion and Tenure Committees: A Faculty Guide. Bolton, MA: Anker Publishing Co. Inc., 1994.
Gmelch, Walter H. and Miskin, Val D. Leadership Skills for Department Chairs. Bolton, MA: Anker Publishing Co. Inc., 1993.
Goonen, Norma M. and Blechman, Rachel S. Higher Education Administration: A Guide to Legal, Ethical, and Practical Issues. Westport, CT; Greenwood Press, 1999.
Hecht, Irene W. et al. The Department Chair As Academic Leader. Phoenix, AZ; American Council on Education/Oryx Press, 1999.
Hickson, Mark and Stacks, Don W. Effective Communication for Academic Chairs. State University of New York Press, 1992.
Higgerson, Mary Lou. Communication Skills for Department Chairs. Bolton, MA: Anker Publishing Co. Inc., 1996.
Leaming, Deryl R. Academic Leadership: A Practical Guide to Chairing the Department. Bolton, MA: Anker Publishing Co. Inc., 1998.
Lucas, Ann F. Strengthening Departmental Leadership: A Team-Building Guide for Chairs in Colleges and Universities. San Francisco, CA: Jossey-Bass Publishers, 1994.
Lucas, Ann F. Leading Academic Change: Essential Roles for Department Chairs. San Francisco, CA: Jossey-Bass Publishers, 2000.
Toma, J. Douglas and Palm, Richard L. The Academic Administrator and the Law: What Every Dean and Department Chair Needs to Know. Washington, D.C.: ERIC/The George Washington
Tucker, Allan. Chairing the Academic Department. Phoenix, AZ: American Council on Education/Oryx Press, 1992.
Weeks, Kent M. Managing Departments: Chairpersons and the Law. Nashville: College Legal Information, Inc., 1996.
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