By Donna R. Euben, AAUP Counsel
Post-tenure-review policies are on the increase. According to a 1996 study, 61 percent of 680 institutions had a post-tenure-review policy. Beverly Jo Harris, “The Relationship Between and Among Policy Variables, Type of Institution and Perceptions of Academic Administrators with Regard to Post-Tenure Review,” PhD Dissertation, West Virginia University (1996). By 2000, 37 states had established some form of post-tenure review. Christine M. Licata and Joseph C. Morreale, Post-Tenure Faculty Review and Renewal: Experienced Voices (AAHE, 2002).
Post-tenure-review programs have been (1) mandated by state legislatures (such as, Arkansas, South Carolina, Virginia, and California); (2) required by state systems of higher education (such as the University of Arizona, Oregon, Florida, and Wisconsin); (3) negotiated in collective bargaining agreements between administrations and faculty unions (such as at the California State University system, the University of Illinois at Springfield, and the University of Massachusetts), and (4) created "voluntarily" by higher education institutions (such as Drexel University). See generally Association of American Universities, " Post Tenure Review" ( Apr. 10, 2001).
There have been some very public battles over administration efforts to impose post-tenure review. See Denise K. Magner, "Fierce Battle Over Tenure at U. of Minnesota Ends Quietly," The Chronicle Of Higher Education (June 20, 1997); Jennifer Jacobson, "Faculty Senate at Northeastern U. Rejects Plan to Allow Firing of Tenured Professors," The Chronicle Of Higher Education (June 4, 2001).
I. AAUP Policy
In AAUP's view, any systems to be developed for evaluation are best directed toward constructive measures for improvement. AAUP's report, “ Post-Tenure Review: An AAUP Response” sets “minimum standards for good practice if a formal system of post-tenure review is established.”
In 1983, the Association adopted a policy that sharply criticized systems of periodic review of the performance of tenured faculty members:
The Association believes that periodic formal institutional evaluation of each post probationary faculty member would bring scant benefit, would incur unacceptable costs, not only in money and time, but also in dampening of creativity and of collegial relationships, and would threaten academic freedom.
The Association emphasized that no procedure for evaluation of faculty should be used to weaken or undermine the principles of academic freedom and tenure. The Association cautioned particularly against allowing any general system of evaluation to be used as ground for dismissal or other disciplinary sanctions. The imposition of such sanctions is governed by other established procedures that provide the necessary safeguards of academic due process.
In a 1999 report, “Post-Tenure Review: An AAUP Response”, the preparation of which was prompted by the widespread consideration and adoption of post-tenure-review policies in the academic community, the Association declared that “post-tenure review ought to be aimed not at accountability, but at faculty development.” The report continued:
Post-tenure review must be developed and carried out by faculty. Post-tenure review must not be a reevaluation of tenure, nor may it be used to shift the burden of proof from an institution’s administration (to show cause for dismissal) to the individual faculty member (to show cause why he or she should be retained). Post-tenure review must be conducted according to standards that protect academic freedom and the quality of education.
The document went on to set forth “practical recommendations for faculty at institutions where post-tenure review is being considered or has been put into effect.” The report emphasized that in the event that recurring evaluations reveal continuing and persistent problems with a faculty member’s performance that do not lend themselves to improvement after several efforts, and that call into question his or her ability to function in that position, then other possibilities, such as a mutually agreeable reassignment to other duties or separation, should be explored. If these are not practicable, or if no other solution acceptable to the parties can be found, then the administration should invoke peer consideration regarding any contemplated sanctions.
The report concluded that the standard for dismissal or other severe sanction remains that of adequate cause, and the mere fact of successive negative reviews does not in any way diminish the obligation of the institution to show such cause in a separate forum before an appropriately constituted hearing body of peers convened for that purpose. Evaluation records may be admissible but rebuttable as to accuracy. Even if they are accurate, the administration is still required to bear the burden of proof and demonstrate through an adversarial proceeding not only that the negative evaluations rest on fact, but also that the facts rise to the level of adequate cause for dismissal or other severe sanction. The faculty member must be afforded full procedural safeguards, including, among other safeguards, the opportunity to confront and cross-examine adverse witnesses.
Recently the AAUP issued a report examining action by the Virginia State University administration to apply post-tenure-review policies to two tenured professors, both of whom were dismissed:
The system of post-tenure review at Virginia State University, as the administration implemented it in the cases of [the two dismissed professors], made no provision for faculty peer involvement in the performance evaluation that triggered the post-tenure review process [in their cases], permitted an unsatisfactory evaluation effectively to stand alone as grounds for dismissal, and shifted the burden of proof for retention from the administration to the affected faculty member. The process that was followed leaves tenured faculty vulnerable to dismissal without affordance of academic due process as called for under Association-supported standards. The two cases, although arising under different post-tenure-review policies, exemplify in stark terms the deficiencies of a system of post-tenure review if an administration decides to use such a system to act against tenured members of the faculty whom it wishes to dismiss.
AAUP, “Report: Academic Freedom and Tenure: Virginia State University.”
II. Some Post-Tenure Review Institutional Policies
Post-tenure-review policies tend to call for either "periodic" or "selective" reviews.
An example of a periodic-tenure-review policy is Rice University’s: "Professors (including department chairs) will be reviewed at least every five years and associate professors with tenure (including department chairs) will be reviewed at least every three years."<http://www.professor.rice.edu/professor/Office_of_the_President.asp?214-96.html>.
An example of a "selective" post-tenure-review policy is found at Indiana University-Purdue University, Indianapolis: "The review process is initiated at the school level when at least two consecutive annual reviews indicated that a faculty member or librarian's performance is unsatisfactory, as defined by his or her school or library." <http://www.opd.iupui.edu/flre/home.htm>.
There are also "mixed" post-tenure-review policies. At Colorado State University, for example, "Phase I Comprehensive Performance Reviews of all tenured faculty shall be conducted by the department head at intervals of five years following the acquisition of tenure or if there are two unsatisfactory annual reviews within a five-year review period." <http://facultycouncil.colostate.edu/files/manual/sectione.htm#E.14.2.1>.
III. Some Post-Tenure-Review Legal Issues
A few courts have directly addressed legal challenges by tenured faculty to the establishment or implementation of post-tenure-review policies. Such litigation tends to arise in terms of breach of contract, discrimination, and retaliation.
1. Breach-of-Contract Claims
State of Nevada , University and Community College System v. Sutton : Richard Sutton, a tenured professor, brought a breach-of-contract claim against University of Nevada , Las Vegas (UNLV) after it terminated his employment based on his unsatisfactory evaluations over eight years. The university code provides that a tenured professor may be dismissed if he or she receives overall unsatisfactory ratings for two consecutive years, and UNLV dismissed Sutton on the basis of two consecutive unsatisfactory evaluations. However, following a suit initiated by Sutton, UNLV entered into a contract with Sutton pursuant to a court order which reinstated his employment and stipulated that Sutton’s tenure was to “continue . . . until [it is] revoked by a hearing held pursuant to the university code.” Six months later, UNLV conducted a hearing to dismiss Sutton in part because of the previous unsatisfactory evaluations. Sutton sued alleging breach of contract and arguing, that the contract prohibited UNLV from using the earlier evaluations as a basis for terminating his employment. A jury ruled in favor of Sutton, and the supreme court affirmed. 103 P.3d 8 ( Nev. 2004).
Wiest v. State of Kansas : 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 appointment that resulted from his failure to cooperate in the post-tenure review process. Wiest received three unsatisfactory annual evaluations: “[I]n 1997 Wiest’s department head evaluated Wiest and gave him a performance rating of 1.53, which is below a satisfactory score of 2. That same year, Wiest’s peers assigned him an even lower rating of 1.13. The next year, the department head assigned Wiest a performance rating of 1.47 and his peers again gave him a lower rating of 1.06.” Wiest also failed to cooperate with the prescriptive plan designed to help him meet his obligations, as provided for by university policy. The court acknowledged that “[a]s at most universities, there is an exception at K-State to the degree tenure will protect one’s job in the case of termination for cause for ‘professional incompetence.’” The court found “that there was substantial competent evidence to support K-State’s decision to terminate Wiest.” 78 P. 3d 498 ( Kan. App. 2003).
Barham v. University of NorthernColorado: Jerry Barham, a 29-year tenured faculty member, was charged with unacceptable job performance and unprofessional conduct at the time of his triennial evaluation. The evaluation was not completed, however. Instead, Barham was suspended with pay while dismissal-for-cause proceedings were conducted. Barham alleged that the completion of this triennial evaluation was a prerequisite to his dismissal. The court disagreed, affirming the professor’s dismissal. In upholding the dismissal the court acknowledged that the “procedures for faculty evaluations and dismissal operate independently under the Code.” The court further acknowledged that “[t]hese reviews are for the stated purpose of encouraging and documenting individual achievement and to reward contributions toward University goals. And, this section of the Code does not mandate that the evaluation process be concluded prior to the initiation of dismissal proceedings. Proceedings for the dismissal of an instructor can be initiated at any time.” And finally, in acknowledging the institution’s obligations to its students, the court provided that “[c]onversely, if, as plaintiff suggests, the triennial evaluation must always be completed prior to initiation of dismissal proceedings, students could be required to accept three years of totally incompetent instruction before any remedial action could be taken. The Code should not be interpreted so as to reach an absurd result.” 964 P.2d 545 (Colo. Ct. App. 1997).
Wurth v. Oklahoma City University : Michael Wurth, a tenured professor of chemistry, was dismissed for incompetence. Wurth challenged the termination of his appointment, claiming that the only available procedure for dismissing him was the evaluation procedure found in the faculty handbook. The university countered, arguing that it could initiate an action to discharge using the “for cause” procedures in the handbook. The court ruled for the university. It held that
[t]ermination of employment after failing to improve unsatisfactory performance is different from being discharged for cause unrelated to performance. For performance-based adverse personnel actions, evaluations and the opportunity to improve the performance are legitimate safeguards given to tenured employees. Conversely, a tenured employee may be discharged from employment for such causes as conduct involving moral turpitude or failure to maintain the level of competence necessary for tenure.
907 P.2d 1095 (Okla. Ct. App. 1995).
2. Discrimination and Retaliation Claims
Lubitz v. Wisconsin Personnel Commission: Professor Ralph Lubitz had a health condition requiring leaves of absence, resulting in concerns about his class cancellations, sporadic attendance at department meetings, and lack of participation in department committees. After the implementation of a post-tenure-review policy, Lubitz continued to miss department meetings, was unavailable to teach for several days, and failed to reschedule cancelled classes. These performance concerns led to a development plan that required him to meet all scheduled class sessions, provide written information for all absences due to illness, hold regular office hours, attend department meetings, and meet various professional goals. Lubitz’s performance issues also resulted in a reduction of his merit pay “points” from eight to four. Lubitz sued the university, claiming that the university’s negative evaluation of his performance, implementation of a development plan, and reduction of his merit points were in retaliation against him for taking leave under the state family and medical leave act. The court found for the university, concluding that substantial evidence existed in the record to support the determination that the university’s actions were not in retaliation for his medical leave. 610 N.W.2d 512 (Wis. Ct. App. 2000).
3. Constitutional Challenges
Johnson v. Colorado State Board of Agriculture : A tenured professor appealed the summary judgment in favor of the university, arguing that the imposition of a post-tenure review policy was unconstitutional because it retroactively changed his tenure contract. Johnson had received unsatisfactory reviews in 1997 and 1998. He sought a five-year delay in implementation of the policy. The court upheld the periodic evaluation policy, finding that faculty are always subject to review and discipline and that the plain meaning of the policy provided “no language . . . to suggest . . . a five-year waiting period before the policy would apply to previously tenured faculty.” Furthermore, the court reasoned no waiting period was anticipated given that 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.” The court also held 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.” Accordingly, the court also found that the fact that the policy allowed consideration of past annual reviews did not make the policy retrospective. The court found that the policy “allows for the design of a professional development plan rather than discipline.” 15 P.3d 309 (Colo. Ct. App. 2000).
4. Labor Law
Moosa v. State Personnel Board (CaliforniaStateUniversity): California State University temporarily demoted Suleman A. Moosa, a full professor of finance in the college of business, to the rank of associate professor for five years based on the university’s claims of “unprofessional conduct and/or the failure to refuse to perform the normal and reasonable duties of his position.” The State Personnel Board found that only one of the claims against Moosa was supported by substantial evidence: Moosa’s “failure to comply with his Dean’s directive to develop and submit an ‘Improvement Plan’.” The court acknowledged that Moosa’s refusal to cooperate in developing such a plan “was a microcosm of [a] larger ideological struggle concerning educational policy . . . that was occurring at the time.” Nevertheless, the board found against Moosa, although it modified the demotion from five years to one year. On appeal, the court found that while substantial evidence supported the board’s finding, “the dean’s directive was inconsistent with the terms of the college bargaining agreement.” The agreement “authorizes only a discussion of the professor’s strengths and weaknesses, ‘along with suggestions, if any, for his/her improvement.’” The court concluded that the dean’s order was inconsistent with the contract, and therefore “Professor Moosa had no duty to obey that order, and as a matter of law his refusal to obey the unauthorized order cannot be deemed either unprofessional conduct or a refusal to perform the normal and reasonable duties of this position.” 102 Cal. App. 4th 1379 ( Cal. App. 2002).
IV. Some Practical Suggestions
Be aware that "selective" post-tenure review evaluations (as opposed to periodic ones) may raise the specter of impermissible age discrimination.
Post-tenure-review policies should be developed and implemented by faculty members.
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, as well as an appeals procedure by which faculty may challenge such evaluations.
Successful post-tenure-review policies should reaffirm an institution's commitment to academic freedom and tenure; establish and apply standards consistently and fairly; and educate participants in the process, including department chairs and deans.
*Special thanks to Jamie Basham, 2005 AAUP Law Fellow, for her research assistance on this document.