Managing Faculty Productivity After Tenure (2005)

Legal Issues in Higher Education

October 24, 2005
By Donna R. Euben, AAUP Counsel, & Barbara A. Lee,
Rutgers University

Academic tenure provides important protections for faculty academic freedom and economic security. At most institutions, tenure is awarded after a rigorous review of the individual’s performance in teaching, scholarship and service, and an assessment is made at that time of the likelihood that the faculty member will continue to be productive throughout his or her career. Academic career ladders are short—generally, promotion to full professor is the last step on that ladder, and the faculty member’s career may last another two decades or more after that last promotion. How can faculty and administrators shape institutional policies and reward systems to assist faculty members in remaining engaged, productive, and up-to-date in their disciplines?

Some institutions have designed and implemented systems of post-tenure review to monitor faculty performance and to provide opportunities for faculty renewal. Others use variable pay systems to reward certain types of performance, such as excellent teaching or scholarship. Additional strategies to encourage continued faculty productivity include policies on faculty commitment (or conflicts in commitment) as well as variable workload policies. Each of these strategies will be discussed below.

I. Post-Tenure Review

A. Background

Post-tenure review has been controversial for several reasons. Some faculty fear that such reviews are a thinly disguised attempt to discharge tenured faculty members and replace them with non-tenure track or junior faculty. Others, particularly in publicly funded institutions, are concerned that legislators or state coordinating boards are trying to increase faculty workloads or monitor faculty scholarly performance. Yet others believe that post-tenure review processes are time-consuming and offer little in the way of worthwhile outcomes.

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 may be incorporated in collective bargaining agreements or faculty handbooks (the contractual approach), or created by state statute or administrative regulation. Ark. Code Ann. §6-63-104(a) (2001) and S.C. Code Ann. §59-103-30 (2001) both explicitly include post-tenure review in statutory language regarding review of faculty performance generally. Arizona, Wisconsin, and Oregon provide for such reviews in regulations or policies of state systems of higher education. Various approaches to post-tenure review programs are reviewed in Cheryl A. Cameron, Steven G. Olswang, and Edmund Kamai, “Tenure, Compensation and Productivity: A Select Review of Post-Tenure Personnel Issues,” NACUA Conference Outline (2002) (available from http://nacua.org).

According to a variety of sources (collected in Gabriella Montell, “The Fallout from Post-Tenure Review,” The Chronicle of Higher Education, October 17, 2002, <http://chronicle.com/jobs/2002/10/2002101701c.htm>), the number of faculty who have received unsatisfactory evaluations is very small. Furthermore, research and conversations with chairs and deans at institutions that have implemented post-tenure review have revealed that very few of the reviews have negative consequences (Christine M. Licata and Joseph C. Morreale, eds., Post-Tenure Faculty Review and Renewal: Experienced Voices.   (Bolton, MA: Anker Publishing, 2002); Melinda Wood and Linda Johnsrud, “Post Tenure Review: What Matters to Faculty,” Review of Higher Education, Vol. 28, No. 3, pp. 393-420). At two medical schools, for example, most of the small number of faculty whose reviews were unsatisfactory chose to retire from teaching. In a few cases, individuals whose performance was judged to be unsatisfactory were provided performance improvement plans, complied with them, and brought their performance up to a satisfactory level.1

B. 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 postprobationary 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.”

C. Institutional Policies

Some very public battles have occurred over administration efforts to impose post-tenure review policies such as occurred at the University of Minnesota and the University of Massachusetts. 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). Accordingly, in developing post-tenure review policies, faculty and administrators need to consider a number of issues, which are discussed below:

1. What Are The Purposes of Post-Tenure Review?

Generally, periodic evaluation of tenured faculty may be either formative or summative. Formative evaluations are used to identify strengths and weaknesses in a faculty member’s performance and to provide assistance to faculty to help them correct their weaknesses. Summative evaluations, on the other hand, are used to assess faculty performance, and could form the basis for discipline or discharge.

If the system is created to be formative, but the results are used for discipline or discharge, the faculty will believe that they have been deceived. On the other hand, if the stated purpose is summative, yet there are no consequences for documented poor performance, the system (and its champions) will lack credibility.

A possible compromise between the two seemingly antithetical purposes is to create a formative system that provides resources to assist faculty whose performance has been found not to meet expectations. (Of course, a key issue is what these expectations are and who sets them.) The system could provide for a written plan for improving the individual’s performance and an annual assessment of whether the faculty member is complying with that plan. Several years of noncompliance, or a second review which is also unsatisfactory, then could form the basis for further action by the institution, either to adjust the individual’s workload, impose discipline, or even discharge the individual.

2. What Will Trigger the Post-Tenure Review?

Will all tenured faculty be evaluated on a periodic basis, irrespective of performance levels (a cyclical review), or will certain occurrences trigger a post-tenure review? For example, if a faculty member is denied a salary increase will that trigger a post-tenure review? Or can a department chair or dean request that an individual undergo a post-tenure review, even if it is out-of-cycle? Can the faculty member him- or herself request an out-of-cycle post-tenure review, perhaps because of some recent major accomplishment?

According to a study of 88 colleges and universities with post-tenure review systems, 31 percent of the 88 responding colleges conduct both cyclical and triggered reviews. Cheryl Sternman Rule, “After the Big Decision: Post-Tenure Review Analyzed,” in Policies on Faculty Appointment: Standard Practices and Unusual Arrangements, (Cathy A. Trower, ed.) (Bolton, MA: Anker, 2000). Most also conducted briefer annual reviews for the purpose of salary decisions and sabbatical applications.

3. How Will the Post-Tenure Process Be Developed?

The faculty will expect to play a significant role in the development and implementation of a post-tenure review system. Similarly, at most institutions, the faculty will expect to provide the initial assessment of whether their tenured colleagues are meeting the institution’s performance expectations.

Some institutions develop a template for the general process, and ask departments and other academic units to develop criteria and standards appropriate to their discipline with which to evaluate faculty. An important consideration is who will direct the post-tenure review process (department chair? dean? provost?) and what kind of scrutiny the evaluation results will receive. If the faculty perceive that academic administrators are uninterested in the evaluation outcomes or do not take the process seriously, the faculty will follow suit.

If the faculty are unionized, the union will probably be involved in the development of the process. Depending on the requirements of state law (for public institutions) or federal law (for private institutions), the administration would probably be required to negotiate with the union concerning the impact of a negative evaluation on a faculty member’s terms and conditions of employment.

4. Who Conducts the Review?

In designing a post-tenure review system, it is important to determine who makes the initial assessment concerning the faculty member’s performance. Will it be one or more departmental colleagues? They will probably be the most familiar with the individual’s teaching and scholarship. Another possibility, albeit an expensive one for the institution, is to ask a faculty member in the same discipline from another institution to perform the review, much as is done at research institutions for a tenure or promotion decision. Using an external expert may enhance the objectivity of the evaluation, assuming that the external expert is chosen carefully. A third possibility is to have the chair or dean conduct the initial review; this approach is likely to be resisted by faculty.

5. What Are the Consequences of Negative Reviews?

If a determination is made that the faculty member being reviewed does not meet the department’s performance expectations, what are the consequences?   If the review is formative, then there probably will be an expectation that the individual will be provided with resources to help improve his or her performance.   For example, if the individual needs to improve teaching performance, he or she may be sent to teaching workshops or conferences about teaching. Individuals needing to increase their grant-seeking activity may be paired with a colleague who is successful in that area. Faculty who need to update their research skills or disciplinary knowledge may be given a temporary teaching load reduction or sabbatical.

At some institutions, if a faculty member’s performance is judged not to meet the expected performance standards, a written performance improvement plan (PIP) is developed jointly by the faculty member and the chair (or evaluation committee). Compliance with the PIP should be monitored and evaluated at least annually, and the faculty member should understand the consequences of not complying with the PIP.

6. What Are the Consequences of Positive Reviews?

Just as negative reviews should have known consequences, faculty members whose performance is judged to be well above expectations should be rewarded as well. Special awards for distinguished teaching or scholarship, additional salary bonuses or increments for excellent performance, or some other institutional recognition should follow such a determination. Faculty members who have performed at a very high level will be understandably cynical if all attention and resources are directed at those whose performance was judged to be sub-standard.

7. Who Receives the Results of the Post-Tenure Review?

Conflicts may arise in the development of post-tenure review systems over who gets the results, and how specific those results are. For example, is a report written by the individual or committee who evaluates the tenured faculty member? Does the report become part of a personnel file? Is it used to make salary or sabbatical decisions, or to provide opportunities for administrative responsibilities or other special opportunities? Does the dean and/or provost receive the entire report, or simply a communication that the review is complete and that the outcome was that the individual exceeded, met, or did not meet expectations? These issues are very important to faculty and need to be addressed at the time the system is designed or modified.

8. How Can the Faculty Member Appeal the Outcome of Post-Tenure Review?

In designing post-tenure review policies and procedures, faculty and administrators need to consider how a faculty member might appeal the outcome of such a review, and the criteria for the appeal. For example, can the faculty member appeal the academic judgment of peers, external evaluators, or administrators, or will the appeal be limited to alleged violations of the post-tenure review process? Particularly at those institutions at which negative evaluations may have disciplinary or financial consequences, the right to appeal the outcome of the post-tenure review process is an important protection against potential due process or academic freedom violations.

If the institution already has an appeals process, whether contained in a union contract, faculty handbook, or other policy document, the existing appeals process may provide sufficient protection for the faculty member. On the other hand, institutions may prefer to use an informal appeals process that involves a meeting between the faculty member and chair, or among the faculty member, chair and dean to discuss the faculty member’s concerns. Particularly at institutions at which post-tenure review is formative rather than summative, an informal appeals process may be sufficient to meet the concerns of faculty members about potential academic freedom or discrimination claims.

For examples of post-tenure review policies at two medical schools, see the Appendix to this outline.

D. Some Case Law

A few courts have directly addressed legal challenges by tenured faculty to the establishment or implementation of post-tenure review policies, and we anticipate more cases in the near future. 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 Northern Colorado: 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 (California State University): 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).
Despite what appears to be judicial deference to the institution’s right to create and use (or not) the post-tenure review system, an approach that respects the faculty member’s due process rights, that allows for appeals and/or reconsideration of a negative review, and provides protections for faculty members’ academic freedom rights, will be more acceptable to faculty and easier to defend if litigation ensues.

II. Merit Pay

In addition to conducting periodic formal review of faculty in order to encourage continued productivity, the granting or withholding of certain rewards may be used either to recognize or to sanction declines in productivity or in the quality of a faculty member’s performance.

A. Background

“[M]erit pay . . . has played an increasingly important role in academic life since the 1980s.” Denise Marie Tanguay, “Inefficient Efficiency: A Critique of Merit Pay,” in Steal This University 49 (Benjamin Johnson et al., eds.) (2003) (hereafter “Inefficient Efficiency”). A recent survey by the College and University Professional Association for Human Resources indicates that approximately 34 percent of institutions use merit pay systems. CUPA-HR, 2000-2001 National Faculty Salary Survey (Washington, D.C.: CUPA-HR, 2001).

Merit pay systems depend on the validity of the performance information used to make merit pay decisions. Therefore, an evaluation system whose criteria are clear and which reflects the actual work of the faculty is critical to the success of a merit pay system. Since evaluations of academic performance are typically subjective, designing evaluation systems that measure the quality of a faculty member’s performance is difficult. Scholars have argued that those who design such systems should guard against relying on quantitative outcomes (such as student course evaluation scores or the number of publications produced over a period of time). Kathryn M. Moore and Marilyn J. Amey, Making Sense of the Dollars: The Costs and Uses of Faculty Compensation. ASHE-ERIC Higher Education Report No. 5, 1993.

In view of the fact that salary increase decisions are made annually at most institutions, an annual review of faculty performance would be necessary to support these salary increase decisions. Challenges to merit pay decisions may attack the evaluation system itself, or the motives of those who make the merit pay decisions. And although one might question why a faculty member would go to the expense of litigating over a salary increase that might involve $2,000 or less, these increases are typically added to the individual’s base salary, and the loss of an increase early in one’s career can make a substantial difference over the course of a career. Legal claims involving merit pay decisions typically involve discrimination, free speech, and/or contract claims.

B. Some Case Law On Merit Pay

1. First Amendment

Hollister v. Tuttle (Portland State University): Michael Hollister, a tenured professor of English, successfully sued his university for violating his First Amendment rights when it denied him merit pay increases. Hollister alleged that he was denied such increases because he spoke out publicly against feminist criticism of male writers in American literature and against feminist courses in the English Department. The federal appellate court found that the professor's speaking out on educational policy was protected speech, and that to deny him merit increases in retaliation for that speech was unconstitutional. 210 F.3d 1033 (9th Cir. 2000).

Power v. Summers (Vincennes University): In 1997 another federal appellate court allowed a case to proceed to trial on whether Vincennes University, a two-year public college in Indiana, violated the First Amendment rights of three professors by awarding them low merit increases. The faculty members asserted that they were awarded merit increases of only $400, compared to an average increase of $1,000, because they had been outspoken on issues of faculty salaries. The professors sought a judicial injunction commanding the institution to raise their base salaries to reflect the merit increases they would otherwise have been awarded. The university “concede[d] that these so-called ‘merit’ raises were actually used to reward faculty who were combating ‘dissension’ and ‘divisiveness,’ “according to the court. The court observed that the lower merit increase “not only reduced the fringe benefits [the professors] would have received had they gotten a higher raise, but will reduce their future salaries; for by being added to the base salary the amount of the merit raise will be paid in all future years to those faculty who were granted it.” In allowing the case to proceed to trial, the court concluded that the professors' claims survived because, in part, it could not say “that denying a raise of several hundred dollars as punishment for speaking out is unlikely to deter the exercise of free speech.” 226 F.3d 815 (7th Cir. 2000).

Harrington v. Harris (Texas Southern University): Another federal appellate court considered whether a merit pay plan at the law school of Texas Southern University, a public, historically black institution, violated the legal rights of three tenured white professors. The professors claimed, in part, that they received lower than expected merit increases in retaliation for exercising their free speech rights, which included writing to various university officials seeking the dismissal of a law school dean, participating in a “no confidence” vote to remove the dean, and complaining to the American Bar Association about the university's refusal to dismiss the dean. On the one hand, the court rejected the professors' First Amendment retaliation claim, finding the case merely a “dispute over the quantum of pay increases.” The court noted, however, that “i[f] Plaintiffs had received no merit pay increase at all or if the amount of such increase were so small as to be simply a token increase which was out of proportion to the merit pay increases granted to others, we might reach a different conclusion.” On the other hand, the court accepted the law professors' argument that their low merit increases constituted race discrimination, because the faculty members presented evidence that the administration “failed to give white professors equal credit and consideration” for their work, which caused “black professors to receive higher merit pay increases than those received by their white counterparts.” 118 F.3d 359 (5th Cir. 1997).

2. Discrimination

In addition to Harrington v. Harris (race discrimination), discussed above, other courts have also examined whether merit pay systems are discriminatory.

Kovacevich v. Kent State University: Special education professor Dorothy Kovacevich sued Kent State University, claiming salary discrimination based on her gender. A jury agreed, and on appeal the federal appellate court ruled that sufficient evidence existed for a jury to have found that “her lower salary was a result of gender discrimination.” The university argued that any differences in salary between Kovacevich and her male colleagues were “due to the school's merit system and across-the-board percentage increases.” Kovacevich's evidence, however, persuaded the appellate court that gender discrimination was imbedded in KSU's merit pay system. The court noted that “rather than a neutral system of merit based on anonymous peer evaluations, the merit award system was driven largely by an opaque decision-making process at the administrative level [that] did not necessarily reflect peers' assessment of applicants' performances, and rewarded men disproportionately to women.” In addition, the court cited a faculty report, which stated that “it is extremely difficult to demonstrate the connection between peers' professional judgments of meritorious performance and the size of the merit awards.” 224 F.3d 806 (6th Cir. 2000).

California State University: The California Faculty Association, the statewide faculty union for the CSU system, produced a study reporting that women professors are, on average, awarded 8 percent less in merit pay than their male colleagues. A fact-finding panel, made up of faculty and administration representatives, recommended in January 2001 that the CSU faculty merit increase program be suspended because it “appears to be ill conceived and poorly administered.” See also Alison Schneider, “Faculty Union at California State U. Charges That Merit Pay System Favors Men,” The Chronicle of Higher Education (July 21, 2000).

3. Breach of Contract

Meyer v. University of Akron: A tenured professor of management made a number of legal claims, including that denial of merit pay increases breached his contract, set out in the university's business college faculty manual. The manual provided that “salary adjustment . . . may be reduced to zero,” depending on the faculty member's performance. When the professor received negative evaluations, he was awarded no merit increase. The court found no breach of contract. 2002 WL 31989165 (Oh. Ct. Cl. 2002).

Sack v. North Carolina State University: A tenured history professor, Ronald Sack, filed a grievance against his department chair for failing to award him “academic enhancement” funds, which were given to 50 percent of the faculty members in the history department. Sack claimed that the chair “deliberately overlooked him” for “personal reasons.” Merit increases were to be awarded based on several criteria, including number and quality of recent publications and the likelihood of the professor's being recruited from other schools. A faculty grievance committee ruled that the professor's request for a merit increase had been handled properly, although it suggested that if the department chair had better explained his evaluation methods, the grievance might have been avoided. The president and the board upheld the faculty committee's findings, but the state trial court vacated the board's order. It required the department chair to list all history faculty publications and assign points to each, and if Sack was in the top half of the list, then it should be determined that he had been treated unfairly. The court also ordered that the grievance committee, in its reconsideration, “not consider the age of any faculty member, or any other factor, besides publications,” and that the “Chancellor shall accept the recommendations of the Grievance Committee.” The university appealed, and the state appellate court reversed the trial court. The appellate court found that the grievance committee properly weighed the evidence in reaching its conclusion that the denial of merit increases to Sack was not based on personal malice. 574 S.E.2d 120 (N.C. Ct. App. 2002).

See generally Donna R. Euben, “Judicial Forays into Merit Pay,” Academe 70 (July-Aug. 2003

C. Some Practical Considerations on Merit Pay

“Merit pay as a salary strategy can be of academic benefit only if it motivates faculty to improve their performance.” Harold Barnett et al., “Coping with Merit Pay,” Academe 19, 22 (Nov.-Dec. 1988). In the end, if merit pay plans are adopted, we need to work to make them more transparent. Such transparency will be achieved, in part, by:

ensuring that salary enhancement programs have clear objectives;
incorporating faculty peer-review committees into the process;
developing and implementing policies by peers;
applying criteria for such increases consistently and fairly;
ensuring appeals procedures to provide additional opportunities for decision-maker(s) to obtain relevant information; and
ensuring that merit pay criteria are not used to squelch the speech of faculty.

See generally Tanguay, Inefficient Efficiency.

III. Conflict Of Commitment Policies

Some institutions have developed “conflict of commitment” policies that require faculty to give their full effort to their faculty position. These policies may forbid faculty from holding tenure at more than one institution, may require faculty to disclose all consulting projects and/or income, and may also require faculty to be on campus a certain number of days of the week. Outside activities that involve substantial time by faculty may raise concerns about conflicts of commitment, that is, the amount of time spent by faculty outside their teaching, research, and service responsibility to the institution.

The broad term “conflicts of interest” is generally used to subsume two different concepts: conflict of interest, which tend to involve private financial arrangements, and conflicts of commitment, which generally refer to time and energy. While conflict of commitment is a distinct concept from conflict of interest, the two often overlap and, at times, may be difficult to separate. Moreover, the concept of conflicts of commitment (or “conflicts of obligation”) is the general rubric under which may fall numerous policies affecting a faculty member’s outside activities, such as intellectual property and student research. One study found that among full-time faculty, 34.4 percent of men and 27 percent of women do some paid outside consulting work. The average number of weekly hours spent consulting is 5.2 for men and 4.7 for women. Jerry Jacobs, A Faculty Time Divide,19 Soc. Forum 7 (2004).

A. AAUP Policy

While AAUP has no specific statement on conflicts of commitment, several existing AAUP policies speak to the issue.

AAUP's Statement on Professional Ethics, which many colleges and universities have incorporated into their faculty handbooks, provides: “Professors give due regard to their paramount responsibilities within their institution in determining the amount and character of work done outside it.”

In a joint statement the AAUP and the American Council on Education (ACE) recommended in 1965 that universities develop guidelines and procedures “to guide the individual university staff members in governing their conduct in relation to outside interests that might raise questions of conflict of interest.” “On Preventing Conflicts of Interest in Government-Sponsored Research at Universities,” 51 AAUP Bulletin 42, 43 (1965). The joint statement provided: “Consulting relationships between university and staff members and industry serve the interests of research and education in the university. . . . Such relationships are desirable, but certain potential hazards should be recognized.” At the same time, “a system of precise time accounting is incompatible with the inherent character of the work of a faculty member since the various functions he performs are closely interrelated and do not conform to any meaningful division of a standard workweek.”

AAUP’s report, “Corporate Funding of Academic Research,” further provides:

All universities encourage their faculty members to participate in such off-campus activities as may enrich their research and teaching; all universities discourage excessive involvement in off-campus activities which make no obvious direct or indirect contribution to the faculty member’s capacity to carry out his or her proper academic duties. Faculty consulting, in particular, has long been regarded as a source of concern. Some consulting surely does contribute to the faculty member’s work; but there are limits to what can be regarded as compatible with the holding of a full-time academic position.

69 AAUP Bulletin 18a-23a (1983).

B. The Columbia University Case

At least one direct legal challenge exists arising under a conflicts of commitment policy.

Chichilnisky v. Trustees of Columbia University, Civ. No. 600994/00 (Supreme Court of New York State) (pending): A female professor is suing Columbia University for a number of claims. In its counterclaim, filed in February 2003, the university alleges that the professor violated the university’s conflict of commitment policy by serving as chair and chief executive of an outside organization, Cross Border Exchange, a private company “in the business of electronic facilitation of global securities trading.” The university handbook provides that “[t]he primary professional obligations of full-time faculty are to the University,” and testimony provided that professors “are permitted to engage in outside consulting activity up to an average of one day a week.” The university argues that the professor's CEO position “creates the appearance of competing demands on plaintiff's time and energies and, therefore, constitutes a conflict of commitment . . . [and that her] full-time position violated the one day per week rule.” The professor claims that she “cannot be held responsible for complying with an undefined procedure” and that it is unclear whether the one-day “calculation is based on a five day week or a seven day week” or “whether a day is eight hours, 12 hours, [or] 24 hours.” The professor is quoted as saying that she was “no more than a consultant to Cross Border,” and serves currently as “'non-executive Chairman,' which is permissible under university policy.” Piper Fogg, “A Lone Woman Takes on Columbia,” The Chronicle of Higher Education A10 (Oct. 17, 2003). At the time of this writing, the New York state trial court has not yet issued a decision.

C. Institutional Policies

A recent survey of institutional policies (private and public) on conflicts of interest, which generally include conflicts of commitment, found basically two types of policies: those that were more “bare bones,” serving more as a “statement of basic principles,” and others that were “more prescriptive, . . . provid[ing] faculty with more specific guidance on the question of which kinds of situations will and will not be considered problematic.” Peter Harrington, “Faculty Conflicts of Interest in an Age of Academic Entrepreneurialism,” 27 J.C. & U.L. 775, 802 (2001) (hereafter “Academic Entreperiralism”).

As institutions develop or revise their conflicts-of-commitment policies, they may want to consider the following.

1. Recognize the Benefits of Outside Consulting

Policies should recognize the benefits to the institution of outside faculty consulting.

University of Pennsylvania: The university recognizes that its faculty members are not employees in the usual sense, and that a precise allocation of academic time and effort is inappropriate. Their pursuit of knowledge in their areas of competence is presumed to be a lifelong commitment. A limited association of faculty members with government, professional agencies, and public or private organizations is appropriate, especially when it may enhance their competence as scholars. “Conflict of Interest Policy for Faculty Members” (1991). <http://www.upenn.edu/assoc-provost/handbook/ii_e_10.html>

Policies should explain why such rules can protect faculty. The policy should not be “intended to prohibit or discourage external consulting. Instead, it is intended to protect the faculty member by identifying potential problems and imposing appropriate safeguards before a problem or controversy arises.” Steven A. Veazie, “Consulting and Other Outside Work for Pay by Faculty and Staff: Procedures and Guidelines for Dealing with Conflicts of Interest at the University of Illinois” at 4, 7 (NACUA, 1991). It can also serve to protect the reputation of the professor. Id.

Emory University: What are the benefits to the faculty of a conflict of interest procedure? Conflicts of interest usually arise from a well-intentioned person having two worthy objectives that conflict with one another. The university fulfills its legal obligations and the faculty member is protected when he/she reports the conflict and receives appropriate administrative approval before proceeding with a potentially conflicted situation. The conflict of interest reporting and management procedures are intended to keep the faculty aware of their conflicts of interest, and then help them to manage, reduce, or eliminate those conflicts. “Policy on Conflict of Interest and Conflict of Commitment” (Jan. 1, 2002); <www.emory.edu/COLLEGE/about/ECOR/COIC.pdf>.

2. Define the Terms

The more helpful institutional policies make an effort to define the meaning of “conflicts of commitment” on their campuses.

North Carolina State University: A conflict of commitment “generally occurs when the pursuit of outside activities involves an inordinate investment of time that interferes with the faculty member's obligations to students, to colleagues and to the missions of the University.” “Conflict of Interest Policy,” REG01.25.1 (1995); <http://www.ncsu.edu/policies/governance_admin/gov_gen/pdf/REG01.25.1.pdf>.

3. Categories of Outside Commitments

Some institutional policies differentiate between paid and unpaid outside commitments.

Northwestern University: “Non-compensated Professional Activities” are those outside activities that extend and enhance a Faculty Member's normal institutional responsibilities of teaching, research, and service to serving public institutions, educational organizations, and professional societies. . . . “Compensated Professional/Commercial Activity,” including outside consulting, refers to paid service as a technical professional adviser or practitioner. It is the use of one's professional capabilities to further the agenda of a third party for personal financial gain, whether one is on the payroll of the organization, working as an independent contractor, or serving as director or manager. “Conflict of Commitment” <www.northwestern.edu/research/pdfs/ faculty-conflictText.pdf>.

Some institutions clearly exclude “professional and academic activities” from conflict-of-commitment policies, since they would seem to fall within the “scope of employment” of faculty.

University of Arizona: “Conflicts of interest and of commitment do not include professional and academic activities such as: site visits, academic panels, promotion and tenure activities, program reviews, recruiting, journal editing, attendance at or preparations for conferences or other professional activities. Such activities are considered to be integral to the employee's professional standing and public service commitments and hence are encouraged.” “Conflict of Interest & Commitment Policy” (Nov. 2, 1998).

4.   Who Is Covered?

If and how should conflicts of commitment policies apply to part-time and adjunct faculty? Should institutions expect professors with no full-time permanent relationship with the school to owe them their primary obligation? A few institutional policies attempt to address this issue. See, e.g., University of South Carolina, “Outside Professional Activities for Faculty” (Feb. 1995), <www.sc.edu/policies/acaf150.html> (“The extent of any reporting requirement for part-time or adjunct faculty is a matter to be dealt with at the local unit level.”); Western Carolina University, “Conflicts of Interest and Commitment” ( Oct. 19, 1995) (“This policy applies to all full and part-time faculty other than adjunct faculty . . .”); <http://www.wcu.edu/chancellor/index/universitypolicy/policy54.html>.

Some policies acknowledge that conflict of commitment policies apply differently to 12-month, 9-month and part-time appointments.

University of California: The conflict of commitment policy allows up to 39 days during the academic year for a 9-month appointment, and notes that “no restrictions on the number of days of compensated outside professional activity” exist “during the summer months.” For part-time faculty, “the applicable time limit is prorated based on their percentage appointment at the University. . . . In addition, the faculty member could engage in additional compensated outside professional activities during the time not committed to the University.” “Conflict of Commitment and Outside Activities of Faculty Members,” APM-025 (2001) <http://www.ucop.edu/acadadv/acadpers/apm/apm-025-07-01.pdf>.

5.   Disclosure

Most policies provide for some kind of disclosure, either on an annual basis or as potential conflicts arise. See Harrington, Academic Entrepreneurialism at 809-810. Such disclosures may be triggered by different thresholds, e.g., amount of time, outside income generated, and so on. See, e.g., Cornell University (“Full-time faculty members must inform their department chairpersons of all plans to do private consulting for which they are compensated.”).

6.   Leave Options?

Some institutional policies provide faculty with the option of temporarily reducing a full-time appointment to a part-time one.

Northwestern University: “Arrangements for part-time status to accommodate professional or commercial activities must be approved by the appropriate administrator . . . and should normally be of limited duration. Depending on the needs of the school and department and/or center, as well as to protect the University's interests, it may be necessary to deny some requests for such arrangements.” <http://www.northwestern.edu/research/pdfs/faculty-conflictText.pdf>.

See also University of California (“A faculty member may be permitted to go on full- or part-time leave in order to pursue certain compensated outside professional activities.”).

7. Impact on Tenure and Promotion?

If there is any effect—positive or negative—from outside employment or consulting on tenure or post tenure review, such implications should be fully disclosed. See, e.g., “Conflicts of Commitment,” <http://www.hopkinsmedicine.org/som/faculty/policies/facultypolicies/conflict_commitment> (“[F]aculty members at ranks below full professor must consider the impact of secondary commitments on their ability to fulfill the criteria for promotion.”).

Some policies even address concerns that “relations between senior and junior faculty should not be influenced adversely by interactions with private sector”:

Oregon State University: “The involvement of junior members of the faculty with commercial enterprise may or may not be important to their professional development. Senior faculty may be able to assist junior faculty in developing such activities by offering potential opportunities to them and by giving them advice with respect to both technical and ethical issues. It is essential, however, that participation in commercial ventures not lead to loss of the senior faculty's objectivity in judging junior faculty in issues of promotion and tenure. Objectivity could be compromised by collaboration between junior and senior faculty in commercial enterprise activities or by expectations that junior faculty should or should not participate in such activities.” (Emphasis added.) <http://oregonstate.edu/research/osprc/rc/outside.htm>.

8. Peer Review and Appeals

Informal resolution should be encouraged. According to Harrington's survey of institutional policies, “All of the policies reviewed . . . require that attempts be made to informally resolve conflicts issues by mutual agreement with the faculty member. . . .” Harrington, Academic Entrepreneurialism at 810.

As always, peer review is an important component of an appeals process. There should be a process in place by which faculty who have been denied the opportunity to engage in outside consulting may grieve to a panel of peers.

George Washington University: Faculty members may bring complaints to a “Conflicts Consultation Committee,” which is “composed of at least five faculty members of the school, elected, ordinarily annually, by the faculty of the school.” The committee makes a recommendation to the vice-president and the vice-president makes a formal decision, which can be appealed to the “University Conflicts Resolution Panel.” The panel is “composed of five faculty members nominated by the Faculty Senate Executive Committee in consultation with the Vice-President and elected by the Faculty Senate. Members of the Panel should ordinarily serve for staggered three-year terms.” The panel makes a recommendation to the administration for a final decision. <http://www.gwu.edu/~facsen/faculty_senate/pdf/AmendedCOI.pdf>.

9. Indemnification

Some institutional policies categorically exclude indemnification coverage for all outside activities of faculty members. Such absolutes, however, may not recognize that outside consulting, especially work devoted to disciplinary organizations or directly related to a professor's scholarship, may, depending on the facts and circumstances, fall within a faculty member’s “scope of employment.” See AAUP, “Institutional Responsibility for Legal Demands on Faculty,” Policy Documents and Reports 130 (9th ed.). (The “legal representation and indemnification for . . . faculties . . . should ensure [coverage] . . . for any faculty member . . . arising from an act or omission in the discharge of institutional or related professional duties . . .”). Some policies leave the possibility open that indemnification might be available for unpaid consulting, for example.

University of Pittsburgh: “[T]his policy may, at the University's sole discretion, also be extended to: . . . professional activities, including public service, that are unambiguously related to the employee's function as a representative of the University, that add to the employee's professional knowledge and experience and that contribute to the general society, even though not carried out at the University's direction or under its control, provided such activities are not compensated by any other person or entity (other than for reasonable expenses or by honoraria no higher than the level paid by the federal government), e.g., service on accrediting commissions and on governmental advisory boards, and attendance at professional conferences. . . . The protection in this policy shall not, among other things, extend to consulting or other outside professional or business activities for which the employee or an entity with which he or she is affiliated is entitled to receive compensation exceeding reasonable expenses.” “Faculty and Staff Indemnification” (May 2002) <www.pitt.edu/HOME/PP/policies/07/07-06-06.html>.

D. Some Additional Practical Suggestions on Conflicts of Commitment Policies

Provide for the regular dissemination of the policies governing conflicts of commitment and the opportunity for discussion, such as at faculty senate meetings or faculty orientation or department chair sessions.
Clearly identify the contact person for conflict of commitment queries from faculty. Some institutions have also established hotlines for such queries.
Be sure to cross-cite to all relevant institutional policies that affect outside commitments of faculty, which may include policies on conflicts of commitment, faculty outside consulting, conflicts of interest, and intellectual property.
Inform faculty candidates of any and all restrictions on their outside consulting activities so as to avoid unpleasant surprises.

IV. Other Strategies

A. Variable Teaching Loads

Depending on the type of institution and its emphasis on research or teaching, it may be possible to assign faculty members whose scholarly productivity has declined to teach additional courses or sections (or to reduce a course load as well). Other options are to refuse to schedule unproductive faculty for summer teaching or other activities for which they receive additional pay. Such decisions could result in discrimination claims, particularly if these reassignments are given primarily to older faculty.

Boise v. New York University: A 75-year-old tenured professor of public administration, William Boise, sued NYU, arguing that a reduction in his course schedule constituted age discrimination under federal law. The full-time teaching load was set at five courses a year, but Boise and the colleagues in his graduate department were scheduled to teach four during the academic year. The court granted the university’s summary judgment motion, holding that “[a] course schedule with one less class than desired cannot be an adverse employment action.” The court further reasoned that even if the professor had stated an age discrimination claim, the university had legitimate, non-discriminatory reasons for the scheduling reduction: questions about “the level of scholarly vigor” he demanded of students, a number of student complaints, his awarding of “A” grades only, and his failure to publish scholarly work and serve in “any active role in outside organizations.” The court stated: “NYU has the discretion to assign courses according to its institutional needs and the intellectual vigor of individual faculty members.” 2003 WL 22390792 (S.D.N.Y., Oct. 21, 2003), aff’d, Boise v. Boufford, 2005 WL 195095 (2d Cir. 2005).

B. Reassignment of Faculty Member to Administrative Position or Special Projects

Depending on the faculty policies at place at your institution, another potential strategy for dealing with unproductive or underperforming faculty is to assign the individual to some administrative position or to perform some special project for the department or institution that falls within the area of the professor’s expertise. As long as there is a need for the activities that the faculty member has been assigned, and the reason for the reassignment is not linked to age, some other “protected” characteristic, or the faculty member’s exercise of free speech, or some contractual prohibition against reassignment, courts will typically uphold the reassignment.

C. Selection for Professional Development or Related Activities

In fields where knowledge advances and changes rapidly (the sciences, for example), dealing with unproductive faculty may be complicated by the fact that their area of expertise may no longer be as relevant or important to the department as it had been in the past, or the faculty member’s own knowledge and research may not have kept pace with changes in the field. If the institution expects the faculty member to remain for some years, investing in professional development of a new or related area of expertise may be worthwhile. Particularly if institutional policies contemplate such a possibility, the faculty member would have difficulty making a viable legal challenge to assignment by a chair, dean or provost to additional training, particularly if the new assignment were considered to be part of the individual’s normal workload (for example, through the use of one or more course releases).

D. Discipline

Although used rarely, discipline such as suspension, or removal from specific committees or assignments may be a strategy for dealing with unproductive or under performing faculty. In the absence of some misconduct by a faculty member that might trigger the need for discipline, the use of discipline to address performance problems would very likely be used only if all other strategies had failed. Legal challenges to discipline would be similar to those discussed above: free speech claims, discrimination claims, and breach of contract claims. For a discussion of various approaches to faculty discipline and suggested strategies for developing discipline systems, see Donna R. Euben and Barbara A. Lee, “Faculty Misconduct and Discipline: A U.S. Perspective,” presented at the 26th National Conference on Law and Higher Education, Stetson University College of Law, February 20-22, 2005.

Appendices

Post Tenure Review Policies

University of Louisville School of Medicine (http://www.louisville.edu/medschool/facaffair/policies.htm)

J. Periodic Career Review

All tenured faculty in the School of Medicine (with the exception of department Chairs and the Dean, who have special administrative reviews every five years) shall undergo periodic career review after every fifth year of service to evaluate their contribution to the missions of the University, School of Medicine, and department. Candidates shall be evaluated as either “satisfactory: meeting School of Medicine criteria”, or “unsatisfactory: not meeting School of Medicine criteria”.

1. For faculty with probationary appointments, the midpoint and tenure review shall be the required career review.

2. Tenured faculty members shall undergo career review after every fifth year of service. When the review period ends in a sabbatical (or other leave) year, the career review shall be deferred until the next academic year. A promotion review shall replace career review for the period in which the promotion occurs. Periodic career reviews shall be conducted in substantially the same fashion as promotion reviews. Criteria shall be proficiency in all areas assigned on the annual work plan for the period under review. The review process shall not extend beyond the office of the Dean of the School of Medicine, but the results of such reviews shall be reported annually to the office of the Vice President for Health Affairs for transmission to the Provost.

a. Tenured faculty members evaluated as satisfactory shall begin the next review cycle in the following academic year.

b. Tenured faculty members evaluated as unsatisfactory shall be re-reviewed two years after the negative evaluation by the Dean. Within the first thirty days they shall prepare a development plan in collaboration with, and approved by, their departmental Chair or division head. The faculty member and department Chair or division head shall jointly execute an agreement to complete the plan and shall forward the plan to the Dean of the School of Medicine for approval. The plan shall include specific requirements to be met within a year. At the end of the year, the faculty member shall then have one year to demonstrate satisfactory performance and will then undergo a follow-up career review. If the faculty member is again evaluated unsatisfactory, the career record of performance shall be forwarded to the Dean of the School of Medicine for appropriate disciplinary action that may include proceedings for termination (Section 4.2.4.A.2 of The Redbook). However, if the faculty member is evaluated satisfactory at the time of the two year follow-up career review, the next five-year review cycle begins with the following year.

c.   Where evidence of outstanding performance over the review period warrants, the reviewing committees shall also assess the appropriateness of Performance-Based Salary Increases over the review period and may recommend a supplementary salary increase as a reward.

3.   For faculty with non-tenurable and part-time appointments (Article I.A.1 and I.B,C,D), consideration for reappointment shall serve as their periodic career reviews. The criteria shall be pertinent to their defined areas of appointment and performance. Satisfactory reviews require documented proficiency in all areas of the annual work assignment. Those who are evaluated as “satisfactory: meeting School of Medicine criteria” may be offered additional contracts for reappointment. Those who are evaluated as “unsatisfactory: not meeting School of Medicine criteria” cannot be offered another contract.

4. All University Redbook and School of Medicine rights of due process and appeal for non- tenurable, probationary, and tenured faculty shall pertain in these periodic career reviews.

K. Procedures For Tenure, Promotion, And Periodic Career Review

1.   Access to Documentation

In all considerations of appointment, promotion, tenure and periodic career reviews, the personnel documents pertaining to the faculty member under consideration including a current curriculum vitae, letters of recommendation, teaching evaluations, reprints of articles, and documentation of other forms of scholarship when appropriate, must be available for review by the voting faculty at least 48 hours preceding the vote on the personnel action.

2. Departmental Guidelines

a.   Separate departmental documents are no longer required and their functioncan be fulfilled by adopting the school’s criteria elaborated in this document (Policy for Promotion, Appointment and Tenure and for Periodic Career Review in the University of Louisville School of Medicine) and its accompanying Appendix A. Each department may prepare written guidelines that specify additional requirements and procedures for promotion, appointment, tenure and periodic career review. Departmental documents and procedures shall not disrupt due process nor set performance requirements lower than those established in this Unit document.

1.   the document must be explicit in specifying the responsibilities of the appointee and the criteria by which proficiency, excellence, and scholarship and other categories, if any, shall be measured. If factors such as professional licensing are to be included, this must be stated clearly, as well as how documentation shall be established.

2.   the document must be explicit in specifying the procedures by which consideration of promotion, appointment, tenure and periodic career reviews are conducted.

3.   the document must ensure that departmental Executive Faculty have a major role in departmental decisions on promotion, appointment, tenure and periodic career review.

4.   the document must be approved by the Unit Promotions, Appointment and Tenure Committee and the Dean of the School of Medicine.

b.   Variations from the procedures listed in Article II.K. of this document are acceptable only if the requested changes are not in conflict with the requirements of The Redbook and Minimum Guidelines and each of the following conditions are met:

1.   the variations are incorporated in the written departmental guidelines and adopted by a majority vote of departmental Executive Faculty.

2.   in the judgment of the Promotion, Appointment and Tenure Committee the modifications do not affect the assurance that the Departmental Executive Faculty will have a major role in appointment, promotion, tenure, and periodic career review decisions at the departmental level.

3.    the variations are approved by the Promotions, Appointment and Tenure Committee and the Dean of the School of Medicine.

c.   This document (Policy for Promotion, Appointment and Tenure and for Periodic Career Review in the University of Louisville School of Medicine) is a standard document which shall be applied to those departments that have not had guidelines approved as provided in Article II.K.2.a,b.

* * * * *

5. Communication with Tenured Associate Professors

Each tenured Associate Professor shall receive a written annual evaluation and a periodic career evaluation as described for all faculty (Articles I.A, II.J, and III.A)

6. Consideration at the Departmental Level

a. All recommendations for new appointments, promotions, tenure, or periodic career review shall originate in the department and require appropriate consideration by the proper committee of the Executive Faculty of the department:

1. a committee of all tenured members of the department shall make recommendations on matters of tenure.

2. a committee of all other professors of the department shall make recommendations on promotions to professor and periodic career review of same.

3. a committee of all other professors and associate professors of the department shall make recommendations for promotion to associate professor and periodic career review of same.

4. a committee of the entire Executive Faculty of the department shall make recommendations for new appointments of probationary and tenured faculty members.

b. The department Chair shall be responsible for making all essential arrangements for meetings of such committees. These arrangements shall include:

1. notifying the candidate of the nature of the materials to be assembled and furnished to the committee and of the date when the documentation is required. The notification shall include the statement that candidates for promotion or tenure

a. may add information or documents for reconsideration by previous levels of evaluation before the file is forwarded to the Office of the Provost, and

b. may examine any substantive material in the file at any time prior to receipt by the Office of the Provost, but shall not be informed of the identity of the evaluators.

2. compiling all annual work assignments and annual evaluations for the file.

3. requesting and receiving all extramural reviews for promotion and/or tenure and preparing a copy of each for use by the candidate after deletion of all identifying items.

4. notifying members of the appropriate committee of the date, time and place of the meeting, with provision of at least 48 hours for all members to study the documents in the candidate’s file.

5. providing to the committee the criteria by which candidates are to be evaluated; these should be forwarded with the other materials to the next level of review.

6. assembling the committee at the proper time for confidential discussion of the candidate’s qualifications, which shall include any evidence of professional misconduct as well as any supporting materials that the candidate cares to submit.

7. ensuring that the voting records of each meeting are maintained by the department and shall include.

a) the names of faculty eligible to vote.

b) the names of those voting.

c) the results of the vote.

c. The decision of the appropriate committee as specified above in Article 6.a., made by anonymous secret ballot, shall be the departmental recommendation. Similar consideration shall be sought from other departmental Executive Faculty with their opinion also obtained by anonymous secret ballot.

7. Consideration by the Chair

The Chair shall prepare a separate evaluation and recommendation which shall be included in the candidate’s personnel file. This letter must include comments on extramural evaluations as set forth in Article II.K.10.

8. Compilation of the Personnel File

a. All documentary materials employed in the evaluation of the candidate including a copy of the criteria used for evaluation, plus the recommendations of the department and the Chair, shall be incorporated into the candidate’s personnel file. The personnel file shall include the faculty work plans for the candidate covering the period under review.

b. The contents of the personnel file are the basis for evaluation at all succeeding levels of review and must be considered confidential.

9. Consideration by the Promotion, Appointment and Tenure Committee

a. All recommendations for appointment or promotion to associate professor or professor, tenure, or periodic career review transmitted to the Dean are forwarded to the Unit Promotion, Appointment and Tenure Committee for review and recommendation. It is the responsibility of this committee to examine each recommendation for consistency with departmental guidelines and current School of Medicine policies on promotion, appointment, tenure and periodic career review.

b. In instances in which the recommendation of the department differs from that of the department Chair, the Committee shall consult with both parties and the candidate prior to making its recommendation.

c. When any disagreement concerning promotion, tenure, or periodic career review occurs between the recommendations of the departmental faculty and the department Chair; the Promotion, Appointment and Tenure Committee and/or the departmental faculty and the department Chair; and the Promotion, Appointment and Tenure Committee and the Dean; the succeeding review authority (i.e., the department Chair; Promotion, Appointment and Tenure Committee; and Dean; respectively) must send a written statement of the reasons for this differing recommendation to the faculty member by certified mail and to the prior reviewing authority (i.e., departmental faculty; departmental faculty and/or the department Chair; and Promotion, Appointment, and Tenure Committee; respectively), each of whom shall have opportunity and time to comment in writing prior to forwarding any recommendation to the succeeding level of review.

d. The committee’s recommendation is transmitted to the Dean who is responsible for preparing the Unit recommendation. The Redbook, Sec. 4.2.2.H.7. requires notification of faculty by certified mail of a negative recommendation on promotion or tenure by the appropriate Vice President, Dean or department Chair, to allow the candidate to request a hearing before a grievance committee. In tenure cases, if the Dean or Chair makes a negative recommendation, the faculty member under review has ten days within which to file with the appropriate grievance committee.

10. Extramural Evaluations

a. Four extramural evaluations are required for each promotion and/or tenure review. Because evaluations during periodic career review are restricted to the School of Medicine, and personnel files do not proceed through University-wide offices, extramural letters of reference will not be required in the personnel file; intramural letters may take their place.

Medical College of Georgia
(http://www.mcg.edu/faculty/facman/fadpt/facappt4.html)

Faculty Appointment, Development, Promotions and Tenure Policy -
Section 4

4.0 Institutional Guidelines for Faculty Development

4.1 Introduction
The goal of the faculty development process of the Medical College of Georgia is to support the securing and maintaining of faculty members of the highest quality. This goal requires that the environment be conducive to developing faculty so that they may (1) contribute substantially to serving the institutions mission, and (2) achieve their own goals for professional satisfaction, promotion, and tenure

* * * * *
4.4 General Guidelines for Post Tenure Review

4.4.1 All units are required to conduct a periodic, regularly scheduled review of tenured faculty to provide ongoing assessment of teaching, scholarly achievement and service activities of the individuals after they have been granted tenure. A Post-Tenure Development Plan (PTDP) will be developed if any performance areas are found to be deficient. Review will reside in the school. Each school within the university will develop and implement such a review process according to its organizational structure but consistent with the policies and procedures of the Medical College of Georgia and the Board of Regents.

4.4.2 The review process for an individual shall be conducted five years after the most recent promotion or personnel action, and reviews shall continue at five-year intervals unless interrupted by a further review for promotion.. It shall be completed no later than the end of that academic year. If an individual is on leave at the time of review he/she will be reviewed during the first academic year after his/her return.

a. All tenured faculty will be reviewed with the following exception: tenured faculty members with a primary administrative appointment (greater than 50% time commitment) at the level of Assistant Dean and above will not be subject to post-tenure review. If such an individual leaves that administrative position and returns to a primary academic position, he/she will then become subject to post-tenure review according to the guidelines within his/her school. The first review will occur at the end of three years of service in the primary academic appointment.

b. Review will be conducted by at least three tenured faculty members, all or a majority of whom are in the school of the individual being reviewed. A representative of the individuals department may be included as a non-voting member of the review committee.

c. The review will encompass teaching, research/scholarly achievement, and service. It will be based upon the faculty members current job description, faculty evaluations, Quarterly Personnel Reports, and the Faculty Activities Profiles. Documentation required will be the Educator’s Dossier as appropriate, the above named reports/forms as appropriate for the last five years, and a Curriculum Vitae. It should be noted that competence in all three areas is expected as is excellence in the area of primary activity. Lack of activity in an area for three years shall be deemed unsatisfactory.

d. Results and recommendations of the review committee will be communicated in writing to both the individual faculty member and the Department Chair. The Chair and the committee will come to an agreement on the content of the review. If they cannot come to an agreement, the Dean will be consulted.

e. The Chair will then review the findings with the individual faculty member. The individual faculty member will be provided with a written copy of the report at least five working days prior to the meeting. The faculty member and the Chair will sign the document after review. The faculty member, if he/she desires, may prepare a written response. The Chair will then transmit the report and any response to the Dean of the school. In the case of reviews of Department Chairs the results will be communicated directly to the Dean. After review by the Dean, the report and any response will be communicated to the Provost with a recommendation for further action or no further action.

4.4.3 In instances where areas of deficiency are noted and further action is required, the Chair is responsible, in consultation with the faculty member and Dean, for establishing a PTDP directly related to the findings of the post-tenure review and identifying appropriate sources for completion of the PTDP. If a PTDP is required for a Chair, it will be developed by the Dean in consultation with the Chair. The PTDP shall be included with the report and forwarded to the Provost.
The Post-Tenure Development Plan (PTDP) will:

a. specify goals or outcomes which would help the faculty member overcome identified deficiencies;

b. outline specific activities which can be undertaken to achieve the goals or outcomes;

c. set appropriate times within which the goals or outcomes should be accomplished (which should not exceed three years); and

d. indicate the criteria by which progress will be monitored.

4.4.4 The Dean will be responsible for financial arrangements associated with the PTDP. If the nature or scope of the PTDP is such that the individual cannot carry out other duties, the Chair and the Dean shall make other arrangements for these duties to be completed.

4.4.5 At the end of the PTDP the individual shall be reviewed by a three-member review committee. If possible, the committee should have the same members who completed the original review (3.4.2.b) Results of the review will be communicated in writing to the Department Chair. The Chair and the committee will come to an agreement on the content of the review. If they cannot come to an agreement, the Dean will be consulted.

a. Upon satisfactory completion of the PTDP the individual shall continue with five year reviews, such time commencing with the next academic year after completion of the program.

b. If completion of the PTDP is deemed unsatisfactory by the review committee, the Chairperson and the Dean, this decision with a recommendation from the Chairperson and the Dean will be referred to the President for further action.

4.4.6 All records of reviews will be retained by the Dean’s office. At the end of each academic year the school must forward to the office of the Provost the names of the faculty members reviewed that year; the results; and the names of each member of the review committees.

4.4.7 A faculty member who disagrees with the results of a post-tenure review, a PTDP or any subsequent actions resulting from the review process has the right to appeal, as outlined below (3.5).

4.5 Evaluation/Review Appeals

4.5.1 The individual faculty member shall have an avenue for appeal of decisions made from annual review or post-tenure review, and/or for disagreement with a PTDP or any subsequent actions resulting from the evaluation process.

a. Decisions by an administrative head, Department Chairperson, or review committee may be appealed to the Dean within 10 days of written notification of a decision, action, or finalization of a PTDP.

b. Decisions by the Dean may be appealed to the President within 10 days of written notification from the Dean. The President shall refer the appeal to an ad hoc Appeals Committee composed of the Chairman of the Faculty Appointment, Development, Promotion and Tenure Committee of the Academic Council and four corps of instruction members to be named by the President two of whom must be members of the Academic council, one of whom must be from the School of the appellant, and in the case of post-tenure review appeals, three of whom shall hold tenure. The appellant has the right to strike for cause any members of the ad hoc Appeals Committee. The President shall inform the Dean and the Provost that an appeal has been submitted and is under review. The findings and recommendations of the Appeals Committee shall be made to the President. The appellant will be notified of the President’s decision with copies to the Dean and Provost.

c. Decisions by the President may be appealed in writing to the Board of Regents within 20 days of notification of the Presidents action.

4.5.2 The procedures for appeal at each level shall be available through the department and through the Dean’s office.

4.6 Institutional Responsibilities

The institution should promote and foster faculty development through the provision of administrative support for programs aimed at quality improvement of faculty and by timely consideration and processing of deserving faculty requests for professional leave that require Regents approval.

4.7 Faculty Retraining

Institutional needs assessments and concomitant programmatic changes within schools and disciplines may at times require the reallocation of faculty positions. When this occurs, competent and productive faculty who may otherwise find their position in jeopardy may wish reassignment to other responsibilities which may require a period of retraining. Such faculty retraining is a complex issue at the individual as well as at the academic unit and institutional levels. It is recommended that each School form a board or committee, as necessary, to provide recommendations to the Dean or appropriate unit director on how to facilitate such retraining should retraining become desirable.

Approved by Academic Council
September 18, 1997

Revisions Approved by Academic Council
March 21, 2003

Endnote:
1. Conversations by B. Lee with academic administrators at two public medical colleges whose trustees required that post-tenure review systems be developed and implemented (Spring 2005). Back to text.

Updated 8/06

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Managing Faculty Productivity After Tenure (2005)

Legal Issues in Higher Education

I. Post-Tenure Review

A. Background

B. AAUP Policy

C. Institutional Policies

1. What Are The Purposes of Post-Tenure Review?

2. What Will Trigger the Post-Tenure Review?

3. How Will the Post-Tenure Process Be Developed?

4. Who Conducts the Review?

5. What Are the Consequences of Negative Reviews?

6. What Are the Consequences of Positive Reviews?

7. Who Receives the Results of the Post-Tenure Review?

8. How Can the Faculty Member Appeal the Outcome of Post-Tenure Review?

D. Some Case Law

1. Breach-of-Contract Claims

2. Discrimination and Retaliation Claims

3. Constitutional Challenges

4. Labor Law

II. Merit Pay

A. Background

B. Some Case Law On Merit Pay

1. First Amendment

2. Discrimination

3. Breach of Contract

C. Some Practical Considerations on Merit Pay

III. Conflict Of Commitment Policies

B. The Columbia University Case

C. Institutional Policies

1. Recognize the Benefits of Outside Consulting

2. Define the Terms

3. Categories of Outside Commitments

8. Peer Review and Appeals

9. Indemnification

D. Some Additional Practical Suggestions on Conflicts of Commitment Policies

IV. Other Strategies

A. Variable Teaching Loads

B. Reassignment of Faculty Member to Administrative Position or Special Projects

C. Selection for Professional Development or Related Activities

D. Discipline

K. Procedures For Tenure, Promotion, And Periodic Career Review

1. Access to Documentation

2. Departmental Guidelines

7. Consideration by the Chair

9. Consideration by the Promotion, Appointment and Tenure Committee

American Association of University Professors 555 New Jersey Ave NW, Suite 600 Washington, DC 20001 Phone: 202-737-5900

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American Association of University Professors
555 New Jersey Ave NW, Suite 600
Washington, DC 20001
Phone: 202-737-5900