Summary
Notes on "Making Defensible Tenure Decisions," by A.
H. Franke, ACADEME, AAUP, November-December 2001, pp. 32-36.
Summarized by J. T. P. Yao, 12/3/01
"… If you ask a senior professor how
her institution's tenure system works, the typical answer will
describe some criteria involving teaching, research, and service.
… Overall, success hinges on an abiding sense of fairness
to both individual and institutional interests. … They often
make this difference between successful and unsuccessful outcomes
in court."
"Tenure lawsuits are more complex than most
other employment litigation. … In the evaluation process,
a department chair may be unfamiliar with principles of evaluation
or employment law. … Whether the evidence arises from careful
deliberation, off-the-cuff e-mails, or hallway conversations,
it is, from a legal standpoint, all admissible. …But when
a tenure-denial case lands in court, judges and jurors typically
know little about the tenure system and, naturally, apply legal
standards and their personal sense of fairness. Academics and
outsiders thus bring very different values and expectations to
these responsibilities."
"… Today, we have more complex institutional
reviews, more court cases, more admissible evidence, and jurors
rather than judges deciding many disputes. … Virtually all
institutions now elicit faculty recommendations on tenure. In
a parallel development, most also consider student teaching evaluations.
At the same time that internal reviews were growing more elaborate,
the courts were beginning to become involved in tenure disputes.
… A recurring legal question of the day was whether courts
could routinely compel institutions to disclose tenure votes and
materials under the rules of evidence. … The Supreme Court
finally resolved this question in 1990. … The High Court
ruled that no special privilege shield tenure reviews from the
general laws of evidence. …"
"… The number of employment-discrimination
cases has subsequently skyrocketed, from 8,400 in 1990 to 23,700
in 1998…"
"Defensible
Evaluations
… The suggestions reflect the prism of fairness
through which jurors view academic processes (the full text of
the joint report is available at www.acenet.edu/bookstore).
1.
On an ongoing basis, provide tenure-track faculty
with honest evaluations of their work and prospects for tenure…
2.
Be willing to make hard judgment to ensure
effective shared governance…
3.
Consider nonrenewal during the probationary
period in appropriate cases…
4.
Be mindful that essentially all oral and written
comments can be used as evidence in a tenure-denial lawsuit…
5.
Be consistent in applying tenure processes
and making tenure decisions…
6.
After the institution has denied tenure to
a candidate help the individual move on with his or her career…"
"The health of the tenure system rests on
sound evaluations of tenure-track faculty. … Faculties and
administrators that look hard at the factors outlined above, digging
together below the wording of their policies into their actual
operations, may find room for improvement. If they use this exercise
to strengthen their evaluations and deliberations, they will increase
their likelihood of avoiding, or prevailing in litigation over
the denial of tenure."
[Readers who are interested in this article are
encouraged to read the original paper in its entirety. Other summary
notes on faculty reward systems are available on the Internet
at http://lohman.tamu.edu
under the heading "Summaries of Papers ..."]
