Avoiding the Tenure Trap
Published in United Educators Perspectives newsletter.
Disputes over the denial of tenure are among the most difficult problems institutions face. These disputes tend to be prolonged and acrimonious because the stakes are high for both sides. For the unsuccessful candidate, the denial of tenure can end an academic career or require starting over at a different institution. When tenure denial cases reach the courts, professors often contend that their careers were ruined, costing them more than $1 million in lost income as well as humiliation, mental distress, and attorney’s fees.
For the institution, the stakes are equally high. The institution may confront issues relating to the long-term quality of its faculty as an element of institutional goals to improve its research or teaching mission. It faces the unpleasant prospect of a judge or jury second-guessing its fundamental academic decisions. A tenure dispute is typically very time consuming for senior faculty and administrators. The financial cost of defending a lawsuit quickly runs into six figures, and the reputational costs from negative publicity are significant.
The Importance of Fairness
In most tenure disputes, candidates allege that the institution did not follow its tenure procedures or that discrimination tainted the process. These arguments are usually first aired in an internal appeal or grievance procedure. If the case subsequently moves to court, the nuanced arguments over discrimination, tenure standards, and procedures may be supplanted by a more simplistic analysis, namely whether the institution acted fairly in denying the tenure application.
While fairness is not a legal standard, a jury that believes the institution acted arbitrarily or unfairly is likely to rule in favor of the professor.
The Hiring Process
Events that occur during the hiring process are often critical to the outcome of a subsequent tenure dispute. The unsuccessful candidate may selectively recall evidence of comments made years earlier by his or her host or the recruiting committee. When asked, “What does it take to get tenure at this institution?” the campus representatives may have offered a reassuring answer such as “four or five articles published in high quality journals.” Portraying the tenure process as a numbers game, the unsuccessful candidate always meets the minimum quantitative standards.
Many institutions try to combat the problem of ill-advised recruiting statements by mailing a copy of the tenure regulations to the prospective faculty member along with a letter offering employment. While this procedure is better than nothing, its usefulness depends on the content and clarity of the regulations. The regulations should clearly state that only the board of trustees (or other responsible authority) can grant tenure or determine the minimum standards for tenure. The regulations should also describe the various levels of review in the granting of tenure and further explain the circumstances (if any) in which the dean or other official can stop the tenure process.
If the regulations are highly detailed or otherwise difficult to read, the institution should consider developing a companion information sheet highlighting key provisions. The information sheet can be provided to all candidates for faculty positions. In addition, the institution should train all individuals recruiting new faculty on giving proper verbal and written information about the standards and procedures for tenure review.
Periodic Progress Reviews
Most institutions conduct intensive progress reviews of tenure-track faculty in either their third year or their second and fourth years. The department chair, senior faculty, and perhaps the dean are typically involved in the evaluation. This process is generally separate and distinct from annual performance reviews.
Interim reviews frequently occur before the faculty member has sufficient time to complete meaningful research. The review is thus conducted on the basis of work in progress rather than published research. Review committees typically do not want to discourage junior faculty and may sugar coat lack of productivity. Reviews frequently state that a faculty member is “making progress” without specifying whether the progress is sufficient. Even when critical statements are included in the written evaluation, committees sometimes explain them away in a verbal meeting with the faculty member. Consequently, it is common to hear courtroom testimony such as, “Yes, I acknowledge that the interim review says that I should increase my publishing efforts, but Dr_________________________ told me not to worry about that statement, that I was doing just fine.”
To eliminate these potential problems, the committee should not orally contradict written evaluations. While the review should be helpful, it must be truthful. If the review expresses an opinion based on work in progress being promising, it should state so explicitly. This document could become evidence in a later tenure dispute and must be written with care.
The Tenured Faculty
Tenured faculty in the applicant’s department are almost always involved in the tenure process. Usually, these faculty members comment verbally or in writing on a candidate’s application for tenure. Often these comments can be a focal point in a subsequent trial, particularly if they are ill advised or unsubstantiated. Serious problems can arise if senior faculty spend insufficient time evaluating a candidate's progress to develop an informed opinion. In some instances, the faculty members are not given a full opportunity to review the entire tenure dossier or do not take the time to thoroughly review it.
Many institutions have raised the standards for achieving tenure over time. Departments need to clearly communicate any “raising of the bar” and give candidates adequate time to achieve that level. The unsuccessful tenure candidate may argue that the senior faculty held the candidate to an unduly high standard—one they themselves were not required to satisfy and could not meet if evaluated on their current performance. At trial, the senior faculty face credibility problems in explaining why they opined that the applicant’s research was poor if their own research productivity over the same period was worse.
Other problems can arise if senior faculty apply novel criteria to the candidate. For example, if the candidate has not attracted many students to his or her classes, but student enrollment is not among the stated tenure criteria and has not been considered in the past, the candidate will complain if it is the basis for the adverse tenure decision. In addition, faculty should scrupulously avoid referring to protected legal characteristics of a candidate, such as age, race, health, and/or disability, during the tenure process.
To avoid potential problems with inappropriate comments, periodically remind tenured faculty about their responsibilities in the evaluation. If a tenured faculty member expresses an inappropriate opinion, the department chair’s recommendation should directly address the impropriety and state that the opinion was not considered.
The Department Chair’s Recommendation
At many institutions, the department chair may submit a separate recommendation on tenure. This recommendation generally is significant and assures that the author will be a key witness in a dispute. If the chair’s recommendation summarizes the contents of the tenure dossier, it must be accurate. For example, if the chair discusses outside recommendation letters, the analysis should be fair and balanced, making clear that the author carefully considered every outside letter. If certain letters were ignored or given little weight, the chair must explain his or her reasoning.
Work in Progress
An issue that often arises in tenure disputes is scholarly work in progress. Although the tenure regulations of many institutions specifically provide that work in progress should be evaluated, unfinished or unpublished work may be hard to assess. The candidate may argue that he or she was unfairly denied credit for research, which typically is published later, in time to be introduced at trial.
Consequently, the weight given to work in progress must be consistent with published guidelines. In addition, any differences in evaluating work in progress for tenure candidates, as opposed to merit review of faculty with tenure, should be noted. For example, problems can arise if a tenured professor is credited with work in progress for merit review purposes while an untenured faculty member is not so credited.
The Dean’s Recommendation
The dean may have the right to stop the tenure process by declining to recommend the candidate to the next level of review. In this instance, the process is halted without ever reaching the chancellor, provost, president, or governing body.
With or without veto power, the dean’s role in the tenure process is obviously crucial. Deans, like department chairs, are key witnesses in disputes. It is important that the jury regard the dean’s decision as both consistent with the institution’s tenure regulations and fair. Ideally, the jury will also view the decision as correct. If not, the institution may still prevail if the jury believes that it tried to be fair.
Many deans are assisted by advisory committees but nevertheless must make an independent recommendation. The recommendation should refer to all of the input received during the tenure process and expressly evaluate it. If any input is discounted, the dean should carefully distinguish the contrary opinion and state the dean’s reasoning for the decision.
Tenure track faculty are entitled to accurate guidance, consistent and appropriate evaluations, and, ultimately, a tenure decision based solely on whether the applicant met or exceeded the institution’s legitimate expectations. Tenure is an extraordinary contract bestowed after intensive review. If an institution holds its faculty to high academic standards, it must be able to demonstrate that its evaluation process also met high standards of rigor.