As an attorney who represents faculty in tenure appeals, disciplinary cases and litigation, I often wish that the university in question had stronger protections for faculty. In the face of the weakening of protections such as tenure and faculty mobility, faculty must develop alternate means of preserving a realm in which intellectual inquiry and critical thought can flourish and which ensures adequate working conditions. One way to do this is through reform of university policy documents (e.g. faculty handbooks) and mobilization of faculty legislative bodies (e.g. faculty senates.). These reforms are especially important since courts are often less concerned with the individual rights of faculty and students and more concerned with the “right of self-governance” of academic institutions.1
Handbook provisions often leave ambiguous whether the university extends academic freedom to speech made in the context of “service,” or participation in institutional governance. The AAUP recognizes that freedom of speech in institutional governance “is a prerequisite for the practice of governance unhampered by fear of retribution.”2
Faculty handbooks often restrict speech when they require excessive politeness. Policy focus should be on objectively offensive conduct, conduct that the faculty member knows or should know would cause offense to a reasonable audience. Subjective civility or behavioral provisions, ostensibly created to protect vulnerable individuals and oppressed groups, are usually used against those individuals and groups, or against those who offend the sensibilities of the powerful or their professional or financial interests.
Many handbooks include the AAUP’s requirement of “respect for the opinions of others.” Any such requirement should be limited and carefully defined. It is debatable whether civility should be a goal in academia, even if it were possible to do it in an even-handed manner. Policies requiring impartiality, journalistic objectivity, or viewpoint “balance” should be opposed. At state institutions such restrictions may also be unconstitutional; just as the Constitution generally does not allow universities to prohibit certain types of speech, it is also often a violation to require certain types of speech. Affirmative statements to that effect should be included in handbooks.
Some institutions circumscribe academic freedom by requiring that faculty adhere to their respective professional norms. Because that standard can be interpreted to mean that views or methodologies outside the prevailing norms of the discipline should be excluded, the provision may hamper academic freedom. Such restrictions can result in the suppression of new and innovative but useful methods, or arbitrary imposition of research methodologies that have nothing to do with the quality of the work.
Departmental or college-level tenure policies should be reviewed to ensure that tenure-track faculty members are given (1) clear notice of the requirements for tenure from the beginning of their tenure-line appointments, (2) access to mentors and (3) regular meaningful reviews of performance. These measures will not guarantee that tenure denials are always anticipated. However, clear communication about tenure standards and progress would make it more difficult for those at most review levels to apply criteria arbitrarily, allow faculty time to improve deficiencies, or move to another institution or endeavor without the stigma of tenure denial.
Tenure review processes should incorporate a mechanism for ensuring that professors denied tenure were given fair notice of performance deficiencies. Probationary evaluations should be included in the tenure portfolio to determine whether such notice was given. In the case of professors who have not met the tenure standard but were never warned about relevant deficiencies in time to make improvements, the reviewer failure should be remedied by, for example, giving the professor the opportunity to reapply in the following year and demonstrate improvement.
To the extent possible, specific tenure criteria should be objective and communicated clearly. However, if a faculty member’s written contract incorporates an exception, that contract should be controlling. Although it is important for universities to adjust tenure requirements to allow for changing field standards and shifting institutional priorities, faculty members should be protected from investing a significant portion of their probationary period working under specified tenure requirements and then be notified of changed requirements when it is too late to adjust. For example, a rule could be devised whereby substantial changes to the tenure standard may not apply to faculty members in at least his or her third year.
At each level, the reviewing authorities should specify reasons for their recommendation, which should be shared with all other reviewing committees as well as the faculty member to afford the faculty member and the department the opportunity to respond prior to the next review level. Lack of transparency only makes it more difficult for faculty to challenge decisions and foster an environment where administrators can retaliate against faculty who use academic speech in ways that are contrary to administration interests.
Tenure evaluators should marshal objective evidence in support of claims. Tenure decisions which raise “questions” about an area of a scholar’s performance but do not answer those questions are unreliable. Whenever possible, “questions” should attempt to be answered, and the opposing view should be considered when deciding whether remaining “concerns” are sufficiently serious and justified to warrant tenure denial. For example, if an external reviewer criticizes the scholar’s published work, but other reviewers address and rebut that specific criticism, that criticism should be disregarded unless evidence in response to that criticism is lacking. If qualitative comments by students or external reviewers are cherry-picked to skew toward deficiencies or merit, evaluators should consider whether those comments are anomalies or reflective of substantial deficiencies.
Many university handbooks have inadequate procedural protections for faculty facing termination or charged with policy violations. Universities which offer adjudicative or appellate procedures should incorporate basic due process principles from the U.S. judicial system into their procedures. The main due process deficiencies universities often embrace are: (1) excessive and selective confidentiality, (2) failure to preserve evidence, (3) failure to provide impartial decision makers, and (4) failure to provide the opportunity to defend oneself.
Misconduct and grievance procedures should be established and reevaluated periodically based on institutional experience. All faculty, whether full-time, contingent, tenure-track or tenured, should have access to procedures for meaningfully contesting termination, non-renewal, discipline, or other job-related actions.
Often, well-meaning handbook drafters provide for complainant confidentiality in order to encourage reporting and protect from retaliation by the accused. The laudability of confidentiality ends when confidential information is used to make an employment-related decision. Allegations may be untrue, be the result of misunderstandings, or unfairly restrict another individual’s academic freedom. Faculty members must have the right to defend themselves against allegations, which implies access to effective defense. In order to provide a meaningful response that will allow the decision maker to ascertain what happened, whether misconduct occurred or some remedial action should be taken, all evidence should be exchanged between parties, just as in civil and criminal judicial contexts.
Other rules that prohibit faculty access to evidence should be resisted. For example, some institutions prohibit note-taking or transcripts during hearings, insist on collecting notes at the end of the session, or maintain policies for shredding documents following a personnel decision. These practices not only inhibit due process, but also render any attempt at consistency, administrative transparency and accountability impossible.
Faculty should also be wary of procedures that allow administrators to circumvent faculty in making personnel decisions. For example, the “for cause” procedure for terminating faculty members should be reserved for cases where the inadequate performance is of the type for which the standard review process is ill-equipped or for urgent matters. These situations should be carefully set forth. Even then, faculty should have a role in determining whether cause exists.
There has been pressure on certain campuses to make it easier for administrators to terminate tenured faculty members. These changes should be resisted with utmost determination. One particularly nefarious technique popular among administrators is the use of fitness-for-duty psychological examinations to manufacture a pretext to terminate or otherwise marginalize unpopular faculty members or pressure them to leave. Employment contracts or applications which require professors to agree to be subjected to psychological testing should be resisted. The Americans with Disabilities Act regulations set limits on the use of this method to ensure that mandatory psychological assessments are not used improperly. Faculty handbooks should create procedural limits on the use of psychological evaluations as well, for example by requiring that a neutral faculty committee evaluates and approves requests for the imposition of a mandatory psychological examination.
Through concerted action and development of adequate governance documents, faculty members can prevent administrations from acting as corporate human resources departments and promote a freer intellectual environment. Of course, for any of these reforms to have any value, they must be scrupulously enforced, which itself requires commitment and concerted action on the part of an organized faculty.