Post Tenure Review: An idea whose time has come

A primer on post-tenure review, by Jim Castagnera

Introduction. Once faculty members are awarded tenure, there may be institutional concerns regarding how to ensure that they remain productive members of the academic community. One mechanism to address that concern has been the establishment of some form of post-tenure review system. In recent years, a number of states have instituted some form of post-tenure review, either by legislative mandate or by the state higher education system regulations or policies. This trend particularly affects public institutions, driven by increasing demands by legislators and the public for greater faculty and institutional accountability. Proponents of post-tenure review argue that it is critical to ensuring public (and state legislators’) confidence in and support for higher education when resources are constrained. Opponents of post-tenure review claim that the review undermines tenure and may pose a threat to academic freedom, as well as affecting the creativity and scope of research and scholarship.
Post-tenure Review Policies. A primary concern for any institution adopting post-tenure review is to determine what is the primary purpose of the process – is it formative, to help identify the strengths and weaknesses of faculty members, and provide assistance in helping them improve; or is it summative, to assess performance and possibly serve as the basis for dismissal or disciplinary proceedings against faculty members? Faculty members are likely to be suspicious of proposals for any form of post-tenure review, viewing it as a mechanism to increase workloads, to monitor their scholarly performance, or as a means to dismiss older faculty. That suspicion is likely to be greater if the proposed system of review is to be summative, or if the system is identified as formative but the results of the review may be used for disciplinary purposes. An approach that may minimize faculty suspicion would be to create a formative review system that provides support and resources to faculty whose performance is found to be below expectations. The system should provide for a written performance plan setting out a path for improvement, and include annual assessments of compliance with the performance plan. Several years of noncompliance with the performance plan by the faculty member could be the basis for initiating disciplinary action against that faculty member.
The post-tenure review system should be developed through a process that allows a major role for faculty. If the faculty is unionized, state and federal labor law require that the administration negotiate with the union over the development and implementation of the policy because the policy will affect the terms and conditions of employment for the faculty. The system developed must be consistent with the collective bargaining agreement. If the faculty are not unionized, the institution may still choose to adopt a policy of post-tenure review and to include the in the faculty handbook. As such, the review system would become part of the employment agreement and would be governed by the general principles of contract law.
The adoption of a policy of post-tenure review requires the institution to address a number of considerations. Given the wide varieties of academic scholarship and research, the institutional policy may set general procedures and provide a template for the review, while allowing the various academic units (schools or departments) to develop appropriate standards and criteria for the review. As noted above, a primary consideration is the purpose of the review – is it formative or summative? Formative systems are more easily accepted and divorcing the review process from any disciplinary procedures will help allay faculty resistance to the adoption of a review policy. The policy should be linked to the provision of institutional resources to support faculty development and improvement. The question of who will direct the review process is an important consideration – the policy should be developed through the institutional governance structure, ensuring faculty involvement in the development of the policy. A related concern is who actually conducts the review -- faculty are likely to resist having the dean or department chair perform the evaluation. Will the department or a unit-wide body review the faculty member? Will a separate mechanism be created, or will the policy may be implemented through the existing institutional structure for tenure and promotion. The process may involve the use of external reviewers – individuals from other institutions but in the same discipline as the faculty being reviewed.
A second consideration is determining what will trigger the review. Will the review be periodic, reviewing a portion of the tenured faculty every so many years, or will the review be selective or triggered by certain events? A periodic review process may require the expenditure of a great deal of time, effort and resources; if only a very few faculty receive negative evaluations, the process may be perceived as overkill. A targeted review process may be viewed as a better use of institutional resources by focusing on underperforming faculty. If the review is to be selective or targeted, it is imperative to spell out clearly the basis for the review or the events that will trigger a review. The criteria need to recognize that producing quality scholarship does not necessarily involve a regular or efficient process. Who can request a review – the department chair, the dean, the faculty member? Targeted or selective reviews present other potential problems -- they create a stigma associated with being targeted as a “problem faculty,” and the process may not be perceived as truly diagnostic. Targeted reviews may also damage relationships among faculty colleagues, and could result in claims of discrimination based on age or other prohibited grounds. Many institutions have provisions for both periodic and triggered reviews – examples include reviewing tenured professors and department chairs at least every five years, or reviewing faculty who receive at least two consecutive annual reviews indicating unsatisfactory performance. In addition to such formal reviews, faculty are generally subject to annual salary reviews and review for sabbaticals.
Another consideration is who will receive the results of the review, and how specific are the results. If the purpose of the review is formative, the review should identify the strengths and weaknesses of the faculty member; the results of the review should provide constructive feedback to the faculty member. Is the evaluation report to be written by committee or an individual? Is it to be approved by the department chair, the dean or provost? Does the report become part of the faculty member’s file, and will it be used for allocating sabbatical opportunities or to determine teaching loads?
Perhaps the most important consideration for a post-tenure review policy is what are the consequences of the review. If there are no significant consequences attached to the review process, it will lose credibility with the faculty. It is crucial to link the review to the allocation of resources for faculty development. If the results of the review are negative, a written, individualized performance plan should be developed, and the faculty member should be provided with resources sufficient to allow her or him to improve performance. In addition to the performance plan, the faculty member should be provided with a mentor to provide advice and assistance. The system should have a means to monitor the faculty member’s compliance with the performance plan, and the faculty member must be informed about the consequences of not complying. If there is a faculty union, the union should be involved in negotiations over the impact of a negative evaluation. Continued non-compliance may be the basis for initiating disciplinary or dismissal proceedings; at the least it should affect salary increases and opportunities for load relief or sabbaticals. The review process also should provide for some recognition of positive evaluations; high level performers may become cynical if the policy only focuses attention and resources on “problem faculty.” High performers should be eligible for special bonuses or salary increments, and other benefits such as load relief.
Lastly, the review process must incorporate some means for appealing the results; an appeals mechanism is a key component of the principles of due process. At the least, the faculty member should be provided with an opportunity to respond to the evaluation. If the evaluation report is to become part of the faculty member’s personnel file, the faculty member’s response should be included as well. Where the review process is entirely formative, an informal appeals process involving consultations with the faculty member, department chair and dean may be appropriate. For review systems that may also trigger disciplinary proceedings, a more formal appeals process should be provided. Does the existing appeals process within the institutional governance structure provide sufficient protection for the faculty member receiving a negative evaluation? What are the criteria for bringing an appeal – can the faculty member appeal on the merits of the evaluation, or is the appeal restricted to procedural issues only?
The American Association of University Professors policy has generally been critical of post-tenure review, but emphasizes that any evaluation system should be directed toward faculty development and improvement. A policy statement adopted in 1983 stated:
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.
An AAUP report prepared in 1999 declared that “post-tenure review ought to be aimed not at accountability, but at faculty development.” The report also emphasized that the post-tenure review process should be developed and carried out by the faculty, and must not be a re-evaluation of tenure. The process must be conducted according to standards that protect academic freedom and must not be used to shift the institution’s burden of proof to show adequate cause for dismissal to the individual faculty member to show cause why he or she should be retained. If recurring evaluations reveal continuing problems that have not been improved after several efforts, then the institution and the faculty member should explore some other, mutually-agreed alternative, such as separation or reassignment. If no acceptable solution can be reached, then the institution may invoke dismissal or disciplinary proceedings before an appropriately-constituted body of peers. In such proceedings, the institution has the burden of demonstrating adequate cause; evaluation records are to be admissible but are subject to being rebutted as to their accuracy.
Post-Tenure Review: Legal Issues. There have been a number of court decisions involving post-tenure review; in most cases, faculty challenges to actions pursuant to the policy have been unsuccessful. The challenges generally involve claims for breach of contract, discrimination, or claims under state labor laws.
In Wurth v. Oklahoma City University, the university dismissed a tenured professor for incompetence through the university’s “for cause” procedures. The faculty member sued the university for breach of contract; he claimed that the university had to follow the post-tenure evaluation procedures set out in the faculty handbook, rather than the “for cause” procedures in order to dismiss him for incompetence. The trial jury ruled in favor of the university, and Wurth appealed. On appeal, the court affirmed the trial court. The court noted that termination for failing to improve unsatisfactory performance was different from being discharged for cause unrelated to performance. For adverse personnel actions based on performance, evaluations and the opportunity to improve performance are legitimate safeguards given to tenured employees,. But a tenured faculty member may also be discharged for cause, such as conduct involving moral turpitude or failure to maintain the level of competence necessary for tenure. Evaluation of performance does not necessarily relate to such cause.
Barham v University of Northern Colorado, involved a tenured faculty member who was due for his triennial evaluation. While the evaluation was pending, the university charged the faculty member with unacceptable job performance and unprofessional conduct. The university did not complete the triennial evaluation, but initiated “for cause” dismissal proceedings; the faculty member was suspended with pay pending the completion of the proceedings. The faculty member sought judicial review of the Board of Trustees’ decision to dismiss him, arguing that the completion of the triennial evaluation was a prerequisite for dismissal, and failure to do so was a denial of his due process rights. The court disagreed; in affirming the discharge, the court stated that the procedures for evaluations and the procedures for dismissal for cause operate independently under the Codification of University policies, procedures and regulations [the Code]. The evaluation reviews were for the purpose of encouraging and documenting individual achievement and rewarding contribution toward the university’s goals. The Code did not mandate that the evaluation process be concluded prior to the initiation of dismissal proceedings; the dismissal proceedings could be initiated at any time.
In Wiest v. State of Kansas, a tenured associate professor had received two unsatisfactory annual evaluations and had failed to cooperate with the proscriptive plan that had been designed to help him improve his performance. His dean notified him that his faculty appointment would be terminated, and he appealed that decision to the university provost. The provost upheld the termination, and Weist then filed an appeal with the faculty senate grievance committee. After a hearing, the grievance committee recommended to the university president that the termination decision be upheld. The faculty member then sought judicial review of the termination decision, and the trial court affirmed the decision. Wiest then appealed to the Kansas Court of Appeals, which also upheld the decision to terminate. The court stated that there was “[S]ubstantial competent evidence” supported the finding that the university followed its policies and terminated Weist based on two successive less than satisfactory evaluations.
In Wurth v. Oklahoma City University, the university dismissed a tenured faculty member for incompetence, using the “for cause” procedures outlined in the university handbook. The faculty member sued, claiming that the university was required to follow the “termination for failure to improve” evaluation procedures in the faculty handbook in order to dismiss him for incompetence. The trial court held for the university, and the court of appeals affirmed. The court held that the university could use the “for cause” procedures for discharging a faculty member for performance-related reasons, and was not required to use the evaluation-related procedures.
The case of Johnson v. Colorado State Board of Agriculture, involved a challenge by a tenured professor to the adoption of a post-tenure review policy. The policy, adopted in 1997, required reviews of tenured faculty at five year intervals; the faculty member received unsatisfactory evaluations in 1997 and 1998. The faculty member filed suit seeking declarative and injunctive relief, on grounds that the university’s implementation of the policy retroactively changed his contract of employment. The trial court granted summary judgment for the university, and the faculty member appealed. The appeals court upheld the policy; it was a procedural change that did not take away any vested rights or impose any new obligations or duties. The fact that the policy allowed the university to consider past reviews did not make the policy retroactive.
A faculty member successfully challenged termination proceedings in State of Nevada, University and Community College System v. Sutton. The university sought to terminate a tenured professor who had received two successive unsatisfactory evaluations in 1990 and 1991. Before a termination hearing was held, the faculty member and the university reached a settlement. The faculty member subsequently filed suit against the university for breaching the settlement agreement. The court held for the faculty member, and in 1999 ordered the university to continue the faculty member’s employment “unless and until such time as his tenure is revoked by hearing held pursuant to the university code.” The university then sought to initiate a termination hearing based on the original unsatisfactory evaluations. A hearing was held, and the hearing committee recommended that the faculty member’s employment be terminated. The university president terminated the faculty member, effective December 21, 1999. The faculty member again filed suit, bringing claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of due process. The trial court held for the faculty member on the claims of breach of contract and breach of the implied covenant of good faith and fair dealing. The university appealed, and the Supreme Court of Nevada affirmed the trial court decision. The court held that the faculty member’s contract incorporated the university code, which required that any hearing must be held within six months of the filing of a complaint. Under the settlement agreement, the university could not rely on the evaluations from 1990 and 1991, and had no authority to hold the hearing. The university breached the contract by proceeding with the hearing, and the result of the hearing and any decision rendered was of no effect.
The case of Lubitz v. Wisconsin Personnel Commission dealt with claims of discrimination and retaliation. A faulty member had a serious health condition. The faculty member had requested, and was granted, a series of full-time and partial leaves of absence. After several years of such leaves, the university informed the faculty member that it would oppose future leave requests because his absences affected its ability to provide instruction to students. The faculty member returned to full time employment, and was reviewed pursuant to the post-tenure review policy. The evaluation raised concerns about cancelled classes, missing department meetings and lack of participation on department committees. The faculty member was subject to a performance plan, and his merit pay “points” were reduced. The faculty member filed a complaint with the state personnel commission, alleging that his merit pay was reduced and he was given a negative evaluation in retaliation for his taking medical leave. The commission held for the university, and the faculty member sought judicial review. The trial court reversed the commission’s decision, and the university then appealed. The court of appeals reversed the trial court and upheld the commission’s decision; the court held that there was substantial evidence in the record to support the determination that the university actions were not taken in retaliation for the faculty member’s taking medical leave.
In Moosa v. State Personnel Board (Cal. State Univ.) , a tenured faculty member was temporarily demoted on grounds of unprofessional conduct and refusal to perform the normal and reasonable duties of his position because he refused the dean’s directive to prepare and submit an improvement plan. The state Personnel Board upheld the demotion, but reduced it to one year; the faculty member sought judicial review of that decision. The trial court granted summary judgment in favor of the university, but the court of appeals reversed. The court of appeals held that the dean’s directive was inconsistent with the collective agreement, which authorized “discussion . . . along with suggestions, if any, for improvement.” The faculty member therefore had no duty to obey the dean’s order, and the refusal to comply could not be used as grounds of unprofessional conduct.
Other Approaches to Manage Faculty Productivity. Apart from post-tenure review, there are other means available to institutions to monitor and manage the productivity of tenured faculty. These approaches may also raise various legal issues.
Merit Pay. One of the most common approaches is the use of merit pay to recognize performance or to sanction decreasing productivity of faculty; it is becoming increasingly important in academia. The effectiveness of a merit pay system depends upon the validity of the information used to determine “merit.” The merit pay system must clearly define the criteria by which performance will be assessed. The design of a merit pay system may be difficult, given the variations in the nature of academic scholarship, and the need to balance the use of quantitative measurement with subjective evaluation. The system must be transparent, and have clear objectives. A merit pay system requires a system of annual reviews in order to support annual salary decisions; the reviews are usually carried out at the department level, subject to review by a dean or associate dean. The system should involve a feedback mechanism to provide relevant information to the faculty members, and should also provide for some appeals procedure to allow faculty to address errors of procedure or substance.
It is also crucial to ensure that merit pay is not used to squelch faculty speech of academic freedoms; many legal challenges to merit pay decisions involve freedom of speech issues. The case of Hollister v. Tuttle , involved a faculty member at Portland State University who claimed that he was denied a merit pay increase because he spoke out against feminist criticism of male writers and against the increase in feminist-oriented courses in the English Department. The trial court granted summary judgment for the university and individual defendants; on appeal, the U.S. Court of Appeals for the Ninth Circuit held that such speech was constitutionally protected, and the denial of merit raises in retaliation for such speech would be a violation of the faculty member’s constitutional rights. The U.S. Court of Appeals for the Seventh Circuit reversed a grant of summary judgment in Power v. Summers. The court allowed a suit against Vincennes University by faculty members alleging they were given lower merit raises (approximately $400 when the average raise was $1000) because they were outspoken on matters of faculty salaries. The faculty members sought an injunction ordering the university to raise their base salaries to reflect the merit increases they should have been awarded. The university admitted that merit raises were used to award faculty who combated “dissension” or “divisiveness;” the court of appeals stated: “we certainly cannot say as a matter of law that denying a raise of several hundred dollars as punishment for speaking out is unlikely to deter the exercise of free speech . . . .”
Merit pay decisions may give rise to claims of discrimination by faculty who are denied raises or who receive below average raises; such claims may be combined with claims of retaliation against faculty for being outspoken. Such was the case in Harrington v. Harris ; three white faculty members at Texas Southern University, a public historically black university, received lower raises than other, African-American faculty. The white faculty members claimed that their lower merit raises were in retaliation for their involvement in criticism of the law school dean, in a no-confidence vote against the dean, and in forwarding complaints to the American Bar Association. The trial court held that the underpayment of the plaintiffs was in retaliation for their exercise of first amendment rights, was due to race discrimination, and the arbitrary and capricious nature of the merit pay decisions violated their due process rights under the fourteenth amendment ; the court awarded them compensatory and punitive damages. On appeal the U.S. Court of appeals for the Fifth Circuit reversed the trial holding on the first amendment issue; the court of appeals held that the issue was simply a dispute over the quantum of pay increases, and did not rise to the level of a constitutional deprivation. The court did affirm the trial court decision that the differential merit raises reflected race discrimination because the white faculty did not receive equal credit and consideration for their achievements; and that the arbitrary nature of the pay decisions was violated the plaintiffs’ right to due process. In Kovacevich v. Kent State University , the court held that the university’s merit pay system reflected embedded gender discrimination. The opaque decision-making process at the administrative level did not reflect the peer assessment of faculty performance, and rewarded men disproportionately in comparison to women; the court held that the merit pay system violated both the Equal Pay Act and Title VII of the Civil Rights of 1964, as amended.
Challenges to merit pay decisions based on contractual claims have generally not been successful. In the case of Meyer v. Univ. of Akron , the Ohio Court of Claims rejected a breach of contract claim by a faculty member who was denied merit increases and opportunities to teach summer school courses because of negative evaluations. The court held that the such actions, taken in response to the faculty member’s negative evaluations, did not violate any university policies. The court characterized the faculty member’s claim as essentially disputing a “judgment call” made by his academic superiors; the court noted for the proposition that “The law is well-settled that trial courts generally defer to the academic decisions of colleges and universities unless there has been such a substantial departure from the accepted academic norms so as to demonstrate that the committee or person responsible did not actually exercise professional judgment.” In Sack v. North Carolina State Univ. , a faculty member filed a grievance against his department chair for failing to give him a merit raise. The university made funds available to grant such raises to 50% of the faculty of the History Department, and the plaintiff claimed that he was overlooked because of “personal reasons.” The university grievance committee held that the denial of a raise was proper; the university president and the governing board upheld the committee’s finding. The faculty member sought judicial review of the decision, and the trial court vacated the board’s order and ordered chair to list the department faculty by publication and give the plaintiff a merit raise if he was in the top 50%. The university on appealed, and the court of appeal reversed the trial court order. The court of appeals noted that the plaintiff had not shown that any statute or university regulation entitled him to a merit award; the court held that the grievance committee had properly weighed the evidence in the case, and the denial of an award was not based on personal malice.
Another approach is the use of variable teaching loads, with an emphasis on teaching or on research; that may be coupled with a restriction on opportunities for overload teaching or other extra activities. Again, the criteria for such determinations should be clearly defined, in order to minimize claims of discrimination. In Boise v. Boufford, the U.S. Court of Appeals for the Second Circuit held that a reduction in teaching load from five course to four courses was not a sufficiently adverse an employment action to give rise to a claim of age discrimination; the university had shown a legitimate reason, the decline of scholarly vigor, to justify the action. Other approaches could involve the reassignment of the faculty member for a special project or for an administrative positions, or selection for appropriate professional development activities.
Formal disciplinary action should be used only as a last resort, after all other strategies have failed to improve a faculty member’s performance or productivity. Any such action taken must be according to the formal university policies, and should involve a faculty body in the determination of whether the university has demonstrated adequate cause for disciplinary action.

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