This report was originally published in the March-April 1999 issue of Academe.
This report concerns the action taken in December 1996 by the board of regents of New Mexico Highlands University to deny tenure to Ms. Catherine Clinger, an assistant professor in the Department of Communication and Fine Arts.
New Mexico Highlands University, a state-supported coeducational institution, was founded in 1893 as New Mexico Normal School and opened its doors five years later. In 1941, the state legislature authorized the institution to adopt its current name. The university (frequently referred to as Highlands or NMHU) is located on a 175-acre campus in the small town of Las Vegas, New Mexico, near the Sangre de Cristo Mountains, some 65 miles northeast of Santa Fe.
The university offers undergraduate and graduate degrees in nine departments in the College of Arts and Sciences and in Schools of Education, Business, and Social Work. Current enrollment numbers some 2,800 students, who are served by a full-time faculty of approximately 120. The university is accredited by the North Central Association of Colleges and Secondary Schools.
Mr. Selimo Rael has been president of NMHU throughout many of the events that are the subject of this investigation. He was appointed to the presidency in 1995, having served previously as the university's vice president for finance and administration.
The university's board of regents consists of five members appointed by the governor for a term of four years. Mr. Wayne E. Bingham, an Albuquerque attorney, is the current chair of the board, having succeeded to that office in March 1997.
II. The Case of Professor Catherine Clinger
Catherine Clinger received a B.F.A. degree in painting and printmaking from the University of Kansas in 1980. The following year she did postgraduate study in intaglio design and printing at the Kansas City Art Institute. In 198182she served an apprenticeship as a printmaker in a private studio in New Mexico, and she received the title of master printer at the end of her training there. The following two years she worked in another studio workshop as a master printer and has continued to work professionally in that capacity since then. In 1987, Ms. Clinger received a master's degree in art history from the University of New Mexico, where she specialized in the nineteenth and twentieth centuries. While in graduate school, she taught courses in art history for five semesters. From 1987 until 1992, in addition to undertaking independent study and training and giving public exhibitions of her work, she owned and directed a commercial studio and printmaking workshop, the Hexenspuk Press, where she offered instruction to undergraduate students in art as well as to established professional artists (she resumed that operation full time after leaving the NMHU faculty in 1997).
Professor Clinger's service at New Mexico Highlands University began in the summer of 1991, when she was appointed as an adjunct faculty member to teach two sections of Introduction to Art. During the 199192 academic year, she held a part-time appointment as a visiting artist and participated in various curricular and other departmental activities. In spring 1992, the university advertised an opening for a full-time probationary position in art history and printmaking. The stated qualifications seem to have been written with Ms. Clinger's credentials expressly in mind:
M.A. in Art History and a M.F.A. or equivalent experience and professional record in printmaking. Strong background in 19th and 20th century art history is appropriate. In printmaking strong professional record as artist and teacher is required. College-level teaching in both art history and printmaking. Administration experience and strong commitment to program and development essential.
Professor Steven Wallace, the chair of the Department of Communication and Fine Arts, encouraged her to apply for the position, and her candidacy received the unanimous support of the five-member search committee. In their written assessments of her qualifications, all five committee members gave her the highest possible ratings for both "academic credentials" and "professional experience." The department and the dean of the School of Liberal and Fine Arts recommended Ms. Clinger's appointment.
Professor Clinger reports having had a series of meetings that June with Vice President for Academic Affairs Gilbert Rivera to negotiate the terms and conditions of her appointment. In response to her request that she be appointed at the rank of assistant professor, Dr. Rivera asked that she document her experience in relationship to the qualifications for that rank set forth in the 1990 NMHU Faculty Handbook (which included "Graduate studies above the Master's degree or the equivalent in other professional attainments"). In a letter dated June 19, 1992, Professor Clinger provided the documentation requested by the vice president. She asserted that she had the experience and the professional record in printmaking equivalent to a master of fine arts degree and thus met the stated requirement in the position announcement. She also provided a professional reference who offered assurances that "[t]he Master Printer is the highest level of professional achievement in the field." The vice president did not accept her printmaking credentials as equivalent to the M.F.A. In his letter of June 22, offering her the position, he stated:
As per our discussion, . . . a terminal degree is expected before promotion or award of tenure. Please submit to my office a status report by December 31, 1992, November 1, 1993, November 1, 1994, and November 1, 1995, as necessary. Continuation on probationary status is dependent upon significant progress toward completion.
He concluded his letter by requesting that she sign the appointment contract he had enclosed, thereby indicating her acceptance of the terms set forth in the letter. According to Professor Clinger, since the contract itself made no reference to any requirement that she obtain an M.F.A. degree, she had no problem signing it, but she maintains that she did not sign or otherwise assent to the portion of Dr. Rivera's letter that referred to the terminal degree requirement.
The question whether the lack of a terminal degree in her field might be a bar to her future eligibility for tenure or whether her professional experience and credentials as a master printer were equivalent to the M.F.A. degree was to remain at issue throughout Professor Clinger's service on the Highlands faculty. During the years following her appointment, she had an ongoing exchange of correspondence with Dr. Rivera and then with his successor in the academic vice president's office, Dr. John Pacheco, concerning her progress (or lack thereof) toward completion of a terminal degree. In a memorandum of January 28, 1993, to Dr. Rivera, Professor Clinger stated that she was "currently in the process of applying to the doctoral program in Art History . . . at the University of New Mexico. In addition to this plan of action, I have engaged in other activities to strengthen my continuing education." (In an affidavit that she submitted to the court in litigation she initiated against NMHU in 1997, Professor Clinger stated, with regard to this memorandum, that, "Although I believe that the supposed requirement of a 'terminal degree' had been resolved, I initially intended to continue my formal education, and I so advised Dr. Rivera in January 1993. Unfortunately, I was forced to abandon my plan to take classes because of a family emergency. As a result, I advised Dr. Rivera in November 1993 that I had made no progress toward a further degree, but I reminded Dr. Rivera of my extensive experience that was equivalent to a further degree.")
In a memorandum of May 3, 1994, concerning Professor Clinger's contract and salary for the 199495 academic year, Dr. Rivera "reminded" Professor Clinger "that a terminal degree or professional certification is expected before promotion or award of tenure. Continuation on probationary status is dependent upon significant progress in meeting this expectation, as well as performance in other areas of faculty responsibilities." (Emphasis added.) He requested a "progress report" by August 31, 1994.
By memorandum of November 10, 1994, headed "Status Report on Post-Graduate Study," Professor Clinger informed Vice President Rivera that she had "enrolled in a three-credit-hour graduate course . . . at UNM. My work as an artist and professional printmaker continues to grow and excel. Again, I must emphasize the fact that I am a highly trained professional [who] has met or exceeded goals within the discipline of intaglio printmaking in the recent past." Professor Clinger would later state to the AAUP staff: "Although I did sign up for one three-hour credit course at UNM, I never attended that course and I never took a graduate course or even applied to graduate school."
On September 15, 1995, Interim Vice President Pacheco, who replaced Dr. Rivera at the end of the previous academic year, wrote a memorandum to Professor Clinger, stating that "a report on progress made toward completion of your terminal degree is due in my office . . . by the end of this month."
In a lengthy response to Dr. Pacheco on September 27, 1995, Professor Clinger stated that her "individual professional development has been continuous since I was hired in 1991." After reviewing her academic and professional career, she cited the job description of her position as it was advertised in 1992 and asserted that "It is clear that I was in possession of all academic and professional credentials required for an Assistant Professor when I was retained." She continued:
It has always been my position that I am fully qualified for my appointment. Although I am not opposed to obtaining a terminal degree, I have been frank about the unlikelihood of my receiving one prior to tenure application. No one has said, "stop building a program and go get a degree." I have chosen not to abandon a ship which has just set sail.. . . I have earned recognition for tenure-track activities, university and community service, and respect for my current professional status as an artist. An earned title of Master Printmaker is equivalent to a Master of Fine Arts in my field. I would appreciate your consideration of my professional attainments.
Responding to Professor Clinger on October 5, 1995, Dr. Pacheco stated: "I have received your memorandum regarding your progress toward a Ph.D. I concur that you are very active and are involved in the development of strong academic programs. I will review the previous agreements regarding the institution's expectations for an advanced degree and will discuss this matter with you at a later date."
Following up on his October 5 memorandum with regard to "NMHU's expectation for an advanced degree," Dr. Pacheco wrote again to Professor Clinger on November 30, 1995, and focused on two documents: "The position announcement which indicates a Master of Arts in Art History and a Master of Fine Arts or equivalent [to obtain the position] and former Vice President Rivera's letter of June 22, 1992, indicating that 'a terminal degree is expected before promotion and award of tenure.'" "These documents," he stated, "will guide us with regard to issues relative to your being expected to complete a terminal degree in order to continue to serve at NMHU."
One year later, on October 11, 1996, Professor Clinger submitted her application for tenure. During her six years at Highlands, she had been very active in institutional governance (and a vocal critic of various policies adopted and actions taken by the administration and the board of regents). At the university level, she played a key role in the revision of the faculty handbook and served successive terms as an elected officer of the Faculty Senate (secretary, vice-chair, and finally-in what would be her last year on the faculty-chair). She made significant contributions to her department, writing and helping to implement a new bachelor of fine arts curriculum, cataloguing and building up its slide collection, and teaching more than two dozen courses. During her time on the faculty, the department saw its number of majors increase from three to seventy-five and its course enrollments rise dramatically-especially in the printmaking area.
Her tenure candidacy received the strong endorsement of her departmental colleagues, who rated her as performing at the highest level in all three of the evaluation categories-teaching; scholarship, research, or creative activity; and service. The vote was ten in favor of tenure with one abstention. Her department chair, Professor Drake Bingham, subsequently gave his "enthusiastic support" for her candidacy and spoke of her "exemplary" teaching performance, her "meticulous" advising of students, and her "leadership in curriculum development and the creation of academic policy." He credited her with having "rescued a dying academic program and turned Visual Art into one of the fastest growing disciplines on campus." Other faculty members throughout the university also submitted letters supporting her for tenure. Outside referees attested to the quality of Professor Clinger's professional work and also spoke to the question of her lack of a terminal degree. One letter of recommendation from a former colleague who was then assistant curator in the University of New Mexico art museum offered
[a] note on the term "Master Printer" as an equivalent to a terminal fine arts degree. Unlike the standard M.F.A. degree, with its emphasis on personal artistic development, the designation "Master Printer" denotes a broader, more collaborative intent. Here at UNM . . . [the] title of Master Printer in lithography [is conferred] on those individuals who have proven themselves by the quality of their prints, their ability to do research, their attitude and ability in working with artists of varying styles and their decision-making abilities. . . . In general, Master Printers like Ms. Clinger are considered to have an even greater mastery of their chosen medium than a M.F.A. graduate due to the extended hours spent in printing and research. That Ms. Clinger chose to add to her technical mastery by pursuing a degree in Art History is evidence of her thoroughness and dedication.
The dean of the College of Arts and Sciences, Dr. Tomas Salazar, endorsed Professor Clinger's tenure candidacy and forwarded her file to Vice President Pacheco. Dr. Pacheco, whatever his initial view of the matter, had come to agree with Professor Clinger on the terminal degree issue. On November 26, 1996, he wrote a memorandum to President Rael stating as follows:
Two individuals in Fine Arts do not have M.F.A.'s. The job advertisements for both positions in FA required M.F.A. or equivalent professional experience. It is the recommendation of the faculty and administration that this requirement has been met in the cases of:
[a second faculty member]
I concur with this recommendation.
President Rael did not inform Professor Clinger directly of his position on her tenure candidacy. However, in the deposition he gave in connection with her subsequent litigation against the university, the president stated that he had supported her for tenure "[f]or two reasons. [She] had received positive evaluations from the institution . . . and in my own mind, from my own discussion with students, she was a good professor." He reported having "had general discussions [with Dr. Pacheco] about terminal degrees and their necessity as part of the institution's requirement for advancement of candidates to tenure." He indicated that it was his "understanding" that the terminal degree was "a requirement of the faculty and the regents." In the cases of two other candidates for tenure in 1996, the president indicated that the lack of a terminal degree had been determinative. Asked why Vice President Pacheco recommended Professor Clinger for tenure "if she did not have the terminal degree that he believed was a requirement of the institution," President Rael replied, "He felt that Professor Clinger was a good professor." The president went on: "Neither of us proclaimed that her good teaching or functioning well as a professor overcame the lack of a terminal degree. We recommended [her] on the basis that she was a good professor, not on the basis . . . that she had met the requirements for a terminal degree." The president further stated that he "interpret[ed] the [November 26, 1996] memorandum as Dr. Pacheco['s] concurring with the recommendation that came to him that Professor Clinger met the requirements of an M.F.A."
On December 9, 1996, the board of regents, all five members present, reviewed eight faculty applications for tenure and rejected four of them, two by a vote of 4-1 and two by a vote of 5-0, the latter including Professor Clinger. The following day President Rael sent Professor Clinger a letter notifying her of the board's decision and stating that her appointment would terminate at the end of the academic year. No reason was given for the rejection of her candidacy. In newspaper articles, however, President Rael and Regent Thomas Keesing were later quoted as saying that the tenure denial was based on the lack of a terminal degree.
Professor Clinger subsequently requested an opportunity to appeal the decision, but on January 13, 1997, the president informed her that the board had denied her request. In the weeks that followed, members of the faculty and of the student body protested the board's decision in her case and that of the three other faculty members who had been denied tenure, but their protests proved unavailing.
On April 11, 1997, a newly installed board of regents, by a vote of 32, declined to reconsider the decisions to deny tenure to the four faculty members. The board issued no findings. That day Professor Clinger filed a sex discrimination complaint with the Equal Employment Opportunities Commission (EEOC). On April 22, she filed suit in federal district court in Albuquerque, alleging violation of the First Amendment, sex discrimination, and breach of contract and seeking reinstatement to the faculty with tenure. On August 19, 1997, the EEOC notified her that it was declining to pursue her complaint and issued her a "right-to-sue" letter.
* * * * *
In June 1997, Professor Clinger sought the Association's advice and assistance concerning the decision to deny her tenure and her allegation that the sole stated basis for the rejection of her candidacy-her lack of a terminal degree-was pretextual, and that the adverse decision resulted in significant part from considerations violative of academic freedom, notably the regents' displeasure with her criticism of various actions they had taken. As she would later state in an affidavit submitted in connection with her litigation against the university:
In late 1994, I proposed and authored a resolution calling for a referendum of the faculty . . . concerning its confidence in the leadership of the Board of Regents. I advocated a vote of "no confidence" with respect to four members of the Board. . . . In a public meeting of the Faculty Senate, [I] stated my opinion that [Regent Thomas] Keesing could not be trusted. In 1995 I criticized the appointment of [Selimo] Rael as President of Highlands, because that appointment violated the process previously established . . . for conducting a presidential search and appointment. In the spring of 1996, the Board of Regents proposed an academic reorganization of Highlands. I frequently and publicly criticized various actions of the Board of Regents in connection with that reorganization as being in direct conflict with mandates of the Faculty Handbook and the Board of Regents Policy Manual.
According to Professor Clinger's affidavit, after her application for tenure was denied, Vice President Pacheco "told me that I had 'burned bridges' and that President Rael's 'feelings are hurt.' I understood Dr. Pacheco's comments to be directed toward my perceived criticisms of President Rael and the Board of Regents."
Following its review of the documents she provided, the AAUP staff wrote to President Rael on July 15, conveying the Association's concerns about the potential issues of academic freedom posed by Professor Clinger's case and about the adequacy of the six months of notice. The staff emphasized its concern that the board's decision in her case, which had been characterized as final, was not subject to independent review, and that the strong and disturbing allegations made by Professor Clinger thus stood untested within the university. The president responded to the staff by letter of July 28, rejecting Professor Clinger's allegations and emphasizing that the decision to deny her tenure "was based purely on the lack of a terminal degree and was in no way caused by or related to her opinions or activities either on or off campus." On August 5, the staff wrote again to President Rael, questioning the university's explanation for its decision and reiterating the Association's previous concerns. The staff noted that at every stage at which Professor Clinger's candidacy for tenure had been reviewed on the merits by responsible individuals at the university-her department colleagues, her department chair, the dean, and the interim academic vice president-she received their unqualified endorsement, with the vice president having concluded that she met the requirement of "equivalent professional experience" in lieu of the M.F.A. degree. The staff found it difficult to accept the president's assertion that the ensuing negative decision of the board of regents, some of whose members had been the object of Professor Clinger's criticism, was "based purely on the lack of a terminal degree." In reply, the president advised the staff that, owing to the pendency of litigation, "all future University communication on the matter will be handled through the court."
On August 20, with the Association's concerns remaining unresolved, the general secretary authorized an investigation, and the staff so notified the NMHU administration. On September 8, Dr. Glen Davidson, newly appointed vice president for academic affairs, telephoned the staff to discuss the forthcoming investigation and to inquire about steps that might be taken by the university to preclude the AAUP's going forward with it. After summarizing the issues of Association concern, the staff invited the vice president to provide documents bearing upon the president's assertion that the decision of the board of regents to deny Professor Clinger tenure had been based entirely on her lack of a terminal degree. In a letter dated October 30, accompanied by twenty supporting documents (most of which the staff had previously seen), Dr. Davidson provided a detailed chronology of Professor Clinger's appointment history at NMHU, along with an explanation of the president's position regarding tenure denial which sought to rebut her claims. He advanced the argument that Professor Clinger had "accepted the terms of employment offered her, including the requirement that she obtain a terminal degree as a condition for tenure." On November 4, having studied the letter and the accompanying documents, and having concluded that they did not in fact resolve the issues of AAUP concern, the staff wrote to advise the administration that the investigation would proceed. On November 17, President Rael wrote to express his disappointment with the Association's response and to inform the staff that the administration, on advice of counsel, was not prepared to discuss the matter any further. He informed the staff that a private attorney, Mr. Tim White, "has been retained by the State of New Mexico to represent the University in this case. Any further requests or communication regarding this matter, including your association's interest in conducting an investigation on this campus should be directed to Mr. White." By letter of December 12 addressed to Mr. White, and through him to President Rael and the chair of the board of regents, the staff explained the purpose of the investigation and invited them to reconsider their decision not to cooperate. The staff went on to notify them of the names of the undersigned investigating committee and proposed dates for the committee's visit. On January 12, 1998, Mr. White wrote to the staff, reiterating the university's unwillingness to cooperate with the investigation, while offering to make himself available to meet with the members of the committee.
The investigating committee, having examined the available documentation, visited New Mexico Highlands University on February 13 and 14, 1998. It met with Mr. White and with Professor Clinger, each of whom provided copies of litigation documents not previously available. The committee also interviewed nine other members of the Highlands faculty, including Professor Clinger's former department chair. Regrettably, the committee did not have an opportunity to discuss the case with any members of the board of regents who were involved in the decision to deny Professor Clinger tenure.
With respect to the following issues, were the actions by the administration and/or board of New Mexico Highlands University taken fairly and supported rationally in light of the Association's recommended standards?
1. The Stated Basis for the Denial of Tenure to Professor Clinger.
The 1940 Statement of Principles on Academic Freedom and Tenure provides that "[t]he precise terms and conditions of every appointment should be stated in writing and be in the possession of both institution and teacher before the appointment is consummated."
Section 9 of NMHU's 1980 Faculty Handbook (in effect at the time of Professor Clinger's initial appointment to the faculty) deals with "Qualifications for Appointment to or Advancement in Rank or for Award of Tenure" and begins as follows:
The outline which follows is to serve as a guide to the Administration and as information for the faculty in regard to the qualifications for appointment to or advancement in rank or for award of tenure. The provisions herein are neither absolute nor automatic; in consideration of an individual for appointment to the faculty or of a faculty member for advancement in rank or for award of tenure, the qualifications are to be interpreted by the President and Board of Regents, acting upon the recommendations of the concerned division chair, the Academic Dean, and the Faculty Personnel Committee. (Emphasis added.)
With regard to the requirements for tenure, specifically as they relate to the possession of a terminal degree, that document goes on to provide as follows: "Any person on the academic staff who does not hold a terminal doctoral degree is normally expected to pursue and obtain such a degree before promotions or award of tenure." (Emphasis added.)
As noted above, at the time of Professor Clinger's appointment to the Highlands faculty, and repeatedly throughout her years at the university, administrative officers emphasized that her future eligibility for tenure would be conditioned on her completion of the terminal degree. Professor Clinger took issue with then-academic-vice-president Gilbert Rivera's position on this matter even before her appointment to the faculty had been consummated. (The chair of the faculty search committee which recommended Professor Clinger's initial appointment would later write that "[t]he committee was not notified at any time that a terminal degree would be required before the candidate could receive tenure. I feel that we hired the most qualified person.") At no time in the course of her many exchanges with the academic vice president's office, according to Professor Clinger, did she ever accept the administration's view of the matter. Nor, despite periodic reminders about her evident lack of progress toward the M.F.A., did the administration invoke the conditions for "continuation on probationary status" set forth in Vice President Rivera's appointment letter of June 22, 1992-and reiterated to her in his memorandum of May 3, 1994-or move to deny her reappointment. Indeed, at one point in his May 1994 memorandum, Dr. Rivera "reminded" her "that a terminal degree or professional certification is expected before promotion or award of tenure." (Emphasis added.) In a memorandum to Vice President Pacheco of November 21, 1996, Professor Clinger took the position that whatever the content or relevance of the original letter of appointment, that document was "superseded by four subsequent contracts," and that the letter "should not have authority over all other considerations."
The views of Professor Steven Wallace, chair of the Department of Communication and Fine Arts at the time of Professor Clinger's appointment, and Professor Drake Bingham, chair of the department during her last three years at Highlands, add further perspective on the terminal degree issue in her case.
In a letter of recommendation dated October 2, 1996, Professor Wallace wrote that he supported Professor Clinger's tenure candidacy "enthusiastically and without qualification." On the issue of her lack of a terminal degree, Professor Wallace went on as follows:
My thinking at the time of her hiring was: In the "art world" she is considered to be a Master Printer. Her professional record as a Master Printer and her "real world" experience in operating a commercial studio/printmaking operation gave her commensurate professional experience that she was able to apply in her teaching and studio work. This was experience I considered to be the equivalent of a Master of Fine Arts . . . degree.
Ms. Clinger's Master of Arts . . . degree in Art History gave her even more qualifications and allowed us to develop a number of Art History classes at the core of the Art curriculum. It was at my encouragement and prompting that this unusual appointment was created. It truly merges the academic and artistic side of Art; in fact, it was at my urging that Ms. Clinger applied for the position and as such I must take some blame for never totally clarifying her degree status in view of future tenure proceedings. To my mind there isn't the slightest doubt that Ms. Catherine Clinger should continue her excellent artistic as well as scholarly work at NMHU.
In his court deposition, Professor Wallace, who became director of the School of Drama at the University of Oklahoma after leaving NMHU, explained that
We [Professors Clinger and Wallace] probably had close to a hundred conversations about her hiring, the degree, the administration, the relationship. . . . I had a meeting with Dr. Rivera. . . . There was another faculty member at that point. I think he was hired at the same time, . . . who I think had a similar situation. And so it was a general discussion. It wasn't specific to Catherine, necessarily, but it was-you know, realize you've got two faculty members, and I want you to track them throughout the next couple of years and make sure that . . . they understand I have not accepted them right now in terms of a terminal degree.
Professor Wallace testified that he never communicated to Professor Clinger that she need not worry about obtaining a terminal degree or that the administration had changed its mind about whether she needed the degree or not. He stated that
I know with Catherine it was an ongoing concern. . . . And I had some of those discussions with her, as well as with [the other junior faculty member], saying, are you doing anything? . . . I know there were some conversations. I think the frustration level would rise every year when the evaluation . . . or a letter would come. Yeah, that's something I (Professor Clinger) need to deal with, or . . . no, I haven't done anything about it. And part of my job as an administrator is to say, look, . . . it's not going to go away and you need to decide what you want to do.
On this same subject Professor Bingham commented to the investigating committee that
The department has always had problems on the terminal degree issue, and fought many battles with the administration over whether professional experience can be used in lieu of a terminal degree. The department would draft a job description that made professional equivalence available, and the department would assess equivalency. The academic vice president did not think that this was legitimate. The view of the department has been that this is our call to make, but the administration disagreed. The ambush letter calling for a terminal degree was not a product of constructive dialogue with the department.
The record indicates that in recent years the Highlands administration and governing board have placed an increasing emphasis on the terminal degree as a condition for tenure, but that exceptions have occasionally been made. In November or December of each year, following receipt of recommendations from the vice president for academic affairs and the president, the regents vote on candidates for tenure. The data available to the investigating committee do not indicate how many candidates for tenure did not reach the board because they lacked a terminal degree, but the committee has seen documents, provided by Professor Clinger, which indicate that in the five years prior to 1996 the board granted tenure to eight faculty members who did not hold terminal degrees. Five of those granted tenure without the terminal degree had been in either business or social work. Exceptions were made in these five cases, according to the current vice president for academic affairs, because each of them had "the certification of nationally recognized organizations" (e.g., C.P.A. or M.S.W.).2 (Emphasis in original.) The remaining three candidates who received tenure without a terminal degree, according to the vice president, "were ABD with an expected doctoral completion date within the academic year of tenure review."
Two cases from Professor Clinger's own department, one in 1995, the other in 1997, bear special scrutiny. One faculty member received tenure in December 1995, even though he had only a master's degree in music. In an affidavit submitted in connection with Professor Clinger's litigation, Professor Bingham, department chair at the time of this faculty member's tenure review, testified that this professor was awarded tenure "despite not having a terminal degree." The university, in its reply brief, asserted that "the referenced professor did have a terminal degree, something that was made plain between that individual and the University from the inception of his employment, thus entitling him to be considered for tenure at the appropriate time." Professor Wallace (Professor Bingham's predecessor as department chair) stated in his deposition that, at the time this faculty member was appointed, then-vice-president Rivera had accepted the M. M. degree as a terminal degree, based on Dr. Wallace's recommendation to that effect.
Another probationary faculty member in the Department of Communication and Fine Arts who was appointed at the same time as Professor Clinger and who, like her, did not have a terminal degree, was also a candidate for tenure when Professor Clinger was under review. As in her case, both the departmental faculty and the responsible administrative officers (with the exception of President Rael) recommended the other faculty member for tenure, but the board turned him down. In a published article about his case, this faculty member wrote that "before signing my contract, then-vice-president Gilbert Rivera added a stipulation not required in the job announcement. That stipulation was that I finish the terminal degree in order to be considered for tenure. This happened in mid-June  and with no time to find other employment for Fall, I signed the contract." He also stated to the AAUP staff that his "story did differ from Catherine's in one way. She refused to agree to the terms of continuance that Vice President . . . Rivera gave her and me in 1992. She declared them unfair and told the administration that she would not comply with them."
The investigating committee finds that the administration of New Mexico Highlands University repeatedly advised Professor Clinger that her continuation on the faculty and the eventual award of tenure would be conditioned on her making progress toward, and ultimately receiving, a terminal degree. In Professor Clinger's formal employment contracts, however, the university made no reference to such a requirement, and indeed the original advertisement for her position allowed for "equivalent experience and professional record in printmaking"-qualifications she always maintained she had. In addition, as described earlier, on one occasion the vice president for academic affairs acknowledged in writing that a "professional certification" would serve as a substitute for a terminal degree. Furthermore, Professor Clinger was allowed to complete her full probationary period and was "considered for tenure at the appropriate time." At the end of the academic review process, the interim vice president for academic affairs, joining the department and the dean in recommending her for tenure, apparently considered the issue to be moot, or at least resolved in her favor. 3
2. Academic Freedom.
According to the NMHU Faculty Handbook, the board of regents recognizes that "[f]reedom of inquiry and freedom of expression are indispensable elements of a great university." The board further states that it "has protected and defended and will continue to protect and defend the academic freedom of all members of the University community." The Faculty Handbook states further that the NMHU regents, the administration, and the faculty have each endorsed the 1940 Statement of Principles "with respect to policies related to academic freedom."
The Association's 1994 statement On the Relationship of Faculty Governance to Academic Freedom recognizes that "[t]he academic freedom of faculty members includes the freedom to express their views . . . on matters having to do with their institution and its policies," and that academic freedom is an "essential [condition] for effective governance." "The protection of the academic freedom of faculty members in addressing issues of institutional governance is a prerequisite for the practice of governance unhampered by fear of retribution." The document goes on to state that "it is . . . essential that faculty members have the academic freedom to express their professional opinions without fear of reprisal." As for the "reasons why this freedom should be accorded and rights to it protected . . . [i]n the case . . . of institutional matters," the statement argues that the "grounds for thinking an institutional policy desirable or undesirable must be heard and assessed if the community is to have confidence that its policies are appropriate."
Professor Clinger alleges that the stated basis for the board's decision to deny her tenure-her lack of a terminal degree-was pretextual and masked the real reason, namely, that she had incurred the displeasure of several regents as well as President Rael with her outspoken criticism of certain controversial actions they had taken over the previous several years. Professor Clinger reports that she spoke out frequently at various public meetings, including those of the Faculty Senate (in which body she held important elected offices), the general faculty, the AAUP chapter, and the board of regents itself. She was regularly quoted in the campus newspaper and the local press offering critical comments about controversial matters occurring at the university.
Professor Clinger reports that "senior faculty warned me that I was becoming a target through my activism." One former chair of the Faculty Senate, Professor of Social Work David Engstrom, testified in an affidavit that during the 199495 academic year "Professor Clinger proposed and authored a resolution calling for a referendum of the faculty . . . concerning its confidence in the leadership of the Board of Regents." According to Professor Engstrom, she "specifically advocated a vote of 'no confidence' with respect to certain members of the Board . . . , including . . . [Regent Thomas] Keesing. In a public meeting of the Faculty Senate, Professor Clinger stated her opinion that Regent Keesing could not be trusted." Soon after the senate meeting, Professor Engstrom testified, he and Mr. Keesing "had a conversation about various matters, including Faculty Senate meetings. Regent Keesing at that time stated that Professor Clinger 'should be more careful about what she says in Faculty Senate meetings.' I understood [him] to be referring to Professor Clinger's criticism of him at the recent Faculty Senate meeting."
In the judgment of the investigating committee, the aforementioned speech of Professor Clinger, including her public criticisms of board members, clearly warranted protection under principles of academic freedom, and adverse action taken against her as a result of such protected speech would certainly have been violative of her academic freedom. The proximity in time between Professor Clinger's protected speech and the adverse tenure decision could be viewed as circumstantial evidence of a retaliatory motive.
Despite the foregoing, the investigating committee knows of no reprisals having been taken against Professor Clinger in terms of salary or assignments. None of her faculty colleagues who spoke with the committee, including her strong supporters, contended that the board's rejection of her tenure candidacy was in retaliation for her public criticism of the regents. Professor Drake Bingham, her department chair and also a former chair of the Faculty Senate, could not recall any threat to Professor Clinger because of positions she had taken as an officer of the senate. Moreover, as noted earlier, she was not the only faculty member the board turned down for tenure on stated grounds of the lack of a terminal degree. She was, however, the only one denied tenure against the recommendation of the president. While the circumstances of her tenure denial may raise suspicions, the investigating committee cannot conclude that retaliation against Professor Clinger for having exercised her academic freedom was a substantial factor in the board's decision to reject her candidacy for tenure.
3. Procedures for Review.
Given Professor Clinger's allegation that the regents' decision to deny her tenure resulted from considerations violative of academic freedom, what procedures for review should have been available to her?
Under the Association's Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, faculty members who allege that a decision against reappointing them was based on impermissible considerations should be afforded the opportunity to be heard by an appropriate faculty body. These standards provide that the faculty member who succeeds in establishing a prima facie case of impermissible considerations should be afforded a full hearing of record, in which the faculty member bears the burden of proof but "it is incumbent upon those who made the decision against reappointment to come forward with evidence in support of their decision." The standards envision circumstances in which the decision being appealed is one that has been made by the institution's responsible faculty and/or administrative officers. They are not readily applicable for reviewing a decision that has been made in the first instance by the institution's governing board, which is itself under these standards the final institutional reviewing authority.
Soon after Professor Clinger received notice of the board's negative tenure decision in her case, she inquired of President Rael about the possibility of filing an appeal. He informed her, by memorandum of January 13, 1997, that the university's regulations made no provision for an appeal against the board's decision. Professor Clinger's claim of violation of her academic freedom thus was allowed to stand untested within the university. The investigating committee believes that in this particular case, given the serious allegation made by Professor Clinger against the board, provision could have been made for independent review of her allegation, or, in the alternative, that the board, before it reached a final decision on her tenure candidacy, could have stated its intentions and its reasoning and returned the matter to the institution's academic professionals for their reconsideration in light of those reasons. Litigation counsel for the university stated to the investigating committee that Professor Clinger was afforded opportunity for an appeal when the regents voted on-and rejected-her request that they reconsider her tenure denial, but the committee does not consider that process, which involved no taking of evidence or deliberative review, to be sufficient.
4. Deference to Academic Judgments.
The 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, a joint formulation of the AAUP and the Association of American Colleges and Universities, speaks in its "Introductory Comments" of the primacy of the faculty in academic decision making:
Just as the . . . governing body is the legal and fiscal corporation of the college, the faculty is the academic entity. . . .
A necessary precondition of a strong faculty is that it have first-hand concern with its own membership. This is properly reflected both in appointments to and in separations from the faculty body.
A well-organized institution will reflect sympathetic understanding by trustees and teachers alike of their respective and complementary roles. . . . Trustees and faculty should understand and agree on their several functions in determining who shall join and who shall remain on the faculty. . . . It seems clear on the American college scene that a close positive relationship exists between the excellence of colleges, the strength of their faculties, and the extent of faculty responsibility in determining faculty membership. Such a condition is in no way inconsistent with full faculty awareness of institutional factors with which governing boards must be primarily concerned.
Moreover, the Association's 1966 Statement on Government of Colleges and Universities recognizes the faculty's primary responsibility for decisions affecting the institution's academic programs and determining faculty status. The statement provides that
The primary responsibility of the faculty for such matters is based upon the fact that its judgment is central to general educational policy. Furthermore, scholars in a particular field or activity have the chief competence for judging the work of their colleagues. . . . Determination in these matters should first be by faculty action through established procedures, reviewed by the chief academic officers with the concurrence of the board. The governing board and president should, on questions of faculty status, as in other matters where the faculty has primary responsibility, concur with the faculty judgment except in rare instances and for compelling reasons which should be stated in detail.
It is also generally recognized that, where judgments involving academic matters are concerned, responsibility also rests with the institution's principal academic administrators-notably the dean(s) and the vice president for academic affairs-who have a central role to play in the decision-making process. As for the governing board, although the Statement on Government recognizes that the board "operates, with few exceptions, as the final institutional authority . . . the board should undertake appropriate self-limitation." (Emphasis added.) It follows that the board should not substitute its judgment for that of the institution's academic professionals but should limit itself to making sure that the prescribed procedures have been responsibly followed.
In the case of Professor Clinger, each responsible academic authority, both faculty and administrative-from her departmental colleagues to her chair, her dean, and the vice president for academic affairs-charged with reviewing the academic merits of her candidacy judged that she met or exceeded all of the stated criteria for achieving tenure. This included the criterion relating to the possession of a terminal degree or "equivalent professional attainments." The president has acknowledged that he, too, supported her for tenure. The board of regents nonetheless determined to reject her candidacy, citing the lack of a terminal degree as its only reason for doing so. The investigating committee finds it ironic that the current board chair, Mr. Bingham, appointed to that position in winter 1997, following the Clinger tenure denial, was quoted in the local press as having stated, "Many people don't understand the concept of tenure. Faculty requesting tenure are reviewed by peers. It is not a regent review. . . . The process starts at the departmental level and is a confidential and objective process." The committee finds the board's decision to set aside the unanimous judgment of Professor Clinger's academic peers and administrative superiors, without compelling reasons stated in detail, contrary to sound principles of academic governance.4
The board of regents clearly had the legal authority to act as it did, and it had a facially legitimate reason for doing so. The regents are reported to have felt that they had to adhere to the terminal degree requirement because of concerns about the university's accreditation. The investigating committee finds it hard to believe that granting tenure to Professor Clinger would have placed the institution's accreditation in jeopardy. Moreover, both her faculty peers and all administrators had ultimately found her credentials to be the equivalent of a terminal degree in her field. In those circumstances, the investigating committee questions the soundness of the board's decision.5 The committee believes that, if there can be exceptions to what is "normally" required by way of formal academic credentials, Professor Clinger's case certainly seems to have called for such an exception.
The 1940 Statement of Principles provides that "notice should be given at least one year prior to the expiration of the probationary period if the teacher is not to be continued in service after the expiration of that period." The stated policy of New Mexico Highlands University provides for notice "not later than December 15 of the second or subsequent year of service if the appointment expires at the end of that academic year."
The NMHU administration complied with the university's regulations on the affordance of notice to Professor Clinger, then in her fifth year of service. President Rael's letter of December 9, 1996, notifying her that the board of regents had denied her tenure, stated that her appointment to the faculty would terminate at the end of the 199697 academic year. The investigating committee finds, however, that the six months of notice given to Professor Clinger was inadequate when measured against the 1940 Statement's provision and generally accepted practice in the academic community.
The decision by the board of regents of New Mexico Highlands University to reject the tenure candidacy of Professor Catherine Clinger on stated grounds that she lacked the terminal degree in her field, ostensibly because the regents believed that it was in the university's long-term interest to have a faculty with the highest credentials, was facially legitimate. The board, however, acted against the judgment of all the academic recommending bodies at the university and brought the matter to closure without having returned it to those bodies for their further consideration-an action inimical to principles of academic governance. Professor Clinger was afforded no opportunity for institutional review of her allegation that the board's decision was based on impermissible considerations, and the amount of notice given to her was inadequate when measured against generally accepted academic standards.
Neil W. Hamilton (Law), William Mitchell College of Law, chair
Carol S. O'Dell (Mathematics), Elizabeth City State University
Committee A on Academic Freedom and Tenure has by vote authorized publication of this report in Academe: Bulletin of the AAUP.
Robert M. O'Neil (Law), University of Virginia, Chair
Members: Anita L. Allen (Law), University of Pennsylvania; Jeffrey Halpern (Anthropology), Rider University; Candace C. Kant (Social Sciences), Community College of Southern Nevada; Irwin H. Polishook (History), Herbert H. Lehman College, City University of New York; Robert C. Post (Law), University of California, Berkeley; Linda Ray Pratt (English), University of NebraskaLincoln; Wendy W. Roworth (Art), University of Rhode Island; Joan Wallach Scott (History), Institute for Advanced Study; Gerald Torres (Law), University of Texas at Austin; Donald R. Wagner (Political Science), State University of West Georgia; Mary A. Burgan (English), AAUP Washington Office, ex officio; Jordan E. Kurland (History and Russian), AAUP Washington Office, ex officio; James T. Richardson (Sociology and Judicial Studies), University of Nevada at Reno, ex officio; Bertram H. Davis (English), Florida State University, consultant; Matthew W. Finkin (Law), University of Illinois, consultant; Robert A. Gorman (Law), University of Pennsylvania, consultant; Lawrence S. Poston (English), University of Illinois at Chicago, consultant; Walter P. Metzger (History), Columbia University, senior consultant; Beulah Woodfin (Biochemistry), University of New Mexico, liaison from Assembly of State Conferences.
1. The text of this report was written in the first instance by the members of the investigating committee. In accordance with Association practice, the text was then edited by the Association's staff, and, as revised, with the concurrence of the investigating committee, was submitted to Committee A on Academic Freedom and Tenure. With the approval of Committee A, the report was subsequently sent to the faculty member at whose request the inquiry was conducted, to the administration of New Mexico Highlands University, and to other persons concerned in the report. In the light of the responses received and with the editorial assistance of the staff, this final report has been prepared for publication. (This report was originally published in the March-April 1999 issue of Academe: the Bulletin of the AAUP [Vol. 85, Issue 2: 99-108].) Back to text
2. In his comments on the prepublication text of this report, Vice President Davidson stated that "[i]n keeping with the standards-of-the-time of the Council on Social Work Education, the M.S.W. was accepted as the terminal degree when candidates were awarded tenure. A doctorate is now the CSWE standard for faculty in social work and has been adhered to by the Regents." Back to text
3. Vice President Davidson, commenting on "why Ms. Clinger was permitted to be considered for tenure at all in light of the repeated warnings to her and the standard of a terminal degree in the Faculty Handbook," stated that "an inadequate policy of communication existed between this office and peers who, with all good intentions, assumed the eligibility of the candidate." Back to text
4. The investigating committee was made aware of several other major instances of unilateral action by the board of regents on matters in which the faculty had a significant interest. In November 1994, 80 percent of the faculty voted "no confidence" in the board for having terminated the appointment of President Gilbert Sanchez without faculty consultation. In August 1995, the board appointed Interim President Rael as president, for a term running until June 1998, without a national search and again without faculty consultation. The faculty was also not consulted in the appointment of the interim vice president for academic affairs in 1995 or in that of the dean of the college of arts and sciences in 1996. Nor was the faculty adequately involved in decisions to reorganize the institution's academic structure. Faculty members commented to the investigating committee on the chronic inability of the regents to appreciate the values of shared governance. The May 1, 1998, faculty vote in favor of collective bargaining, 61 to 17, should have come as no surprise. Back to text
5. Commenting on a prepublication draft of this report, President Rael stated that "Ms. Clinger knew the University's tenure requirements from the beginning of her conditional employment. She was consistently reminded that her credentials were insufficient to meet those requirements. The Regents simply reaffirmed those basic University requirements." Back to text