Promotion and Tenure
Peter H. Ruger
General Counsel
Southern Illinois University
Carbondale, Illinois
Stetson University College of Law:
22nd ANNUAL LAW & HIGHER EDUCATION CONFERENCE
Clearwater Beach, Florida
February 18-20, 2001
Promotion and Tenure
I.
Sources of Standards
A.
American Bar Association: The American Bar Association’s Standards for Approval of
Law Schools (2000) contain several relevant to tenure and promotion.
1.
Standard 204(b) “The dean and faculty . . . shall recommend the selection,
retention, promotion, and tenure . . . of the faculty.” The standard can be
violated by action of a university committee that deprives the dean and faculty
of their roles in tenure and promotion decisions. Interpretation 204-1.
2.
Standard 404 outlines the responsibilities of full-time faculty, thus providing a
matrix for tenure and promotion decisions. The responsibilities are teaching;
research and scholarship; service to the law school and university community;
working with the bar to improve the profession; and obligations to the public,
including participation in pro bono activities. The first two criteria normally are
the most significant for promotion and tenure.
3.
Standard 405 mandates the promulgation of an academic freedom and tenure
policy that, in addition to tenure for “regular” faculty, provides security to full
time clinical faculty members. A fixed limit on the percentage of tenured
faculty violates the standards. Interpretation 405-1. Interpretation 405-3 states:
“A law school shall have a comprehensive system for evaluating candidates for
promotion and tenure, including written criteria and procedures that are made
available to the faculty.”
4.
ABA Academic Freedom and Tenure Standards (Appendix I) track the 1940
Statement of Principles on Academic Freedom and Tenure of the American
Association of University Professors.
B.
Association of American Law Schools (AALS):
1.
The Committee on Academic Freedom and Tenure “may consider a complaint
concerning the failure to grant tenure or otherwise continue the employment of a
non-tenured faculty member only if the complaint clearly raises issues involving
academic freedom or employment discrimination.” AALS 2000 Handbook, p.
46.
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2.
Statement of Good Practices By Law Professors in the Discharge of Their
Ethical and Professional Responsibilities: This “aspirational” guide could
provide a basis for assessing faculty performance. It identifies five areas of
responsibility for law professors: to students; as scholars, to colleagues; to the
law school and university; and to the bar and general public. AALS 2000
Handbook, pgs. 89-94.
C.
Constitutional Due Process Rights: The property interest associated with the holding of
tenure at a public law school creates due process protections. But a property interest is
not violated by the non-renewal of a term or probationary faculty member. Board of
Regents v. Roth, 408 U.S. 564 (1972); Perry v. Sindermann, 408 U.S. 593 (1972).
D.
State Statutes: Governing boards of public institutions often have the authority to grant
tenure conferred by statute. Similarly, a right to appear before the governing board in
the termination proceedings is granted by statute to tenured faculty.
E.
Institutional Policies: Policies governing tenure, promotion and termination create a
contractual relationship between the faculty member and the institution. Academic
custom and usage can provide authority for actions, including termination, not explicitly
addressed in the university’s policies. Krotkoff v. Goucher College, 585 F.2d 675 (4th
Cir. 1978).
F.
Employment Contracts: Unlike coaches of major sports, it is rare for faculty to have
individualized employment agreements. A standard appointment document is common.
But, from time to time, disputes concerning the faculty member’s tenure or
compensation status arise as a result of verbal or written exchanges during the
recruitment process. See The Johns Hopkins University v. Ritter, 689 A.2d 91( Ct. App.
Md. 1996) for a recent example of a dispute involving alleged representations of
tenured status inconsistent with the written tenure procedure.
G.
Higher Education Association “Best Practice” Recommendations: An example is the
American Council on Education’s recently released Good Practice in Tenure
Evaluation, available at www.acenet.edu.
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II.
Judicial Deference to Academic Decisions: Feldman v. Ho, 171 F. 3d 494 (7th Cir. 1999).
Numerous judicial statements of deference to academic decisions, including faculty
employment, exist. The Feldman decision, involving the speaker’s client (Southern Illinois
University) contains strong language recognizing a “university’s academic independence” (171
F.3d at 495) or institutional academic freedom. The U.S. Court of Appeals for the Seventh
Circuit summarized the case: ..“.. our case is easy: Feldman charged a colleague with academic
misconduct; the university investigated the charge and vindicated the colleague; and later it
concluded it could obtain better mathematicians than Feldman for its faculty. If the kind of
decision Southern Illinois University made about Feldman is mete for litigation, then we might
as well commit all tenure decisions to juries . . .” 171 F.3d at 497. “If the university erred in
telling Feldman to seek employment elsewhere that is unfortunate, but the only way to preserve
academic freedom is to keep claims of academic error out of the legal maw.” 171 F.3d at 497.
III.
Modification of the Tenure Contract: Significant as tenure may be, its attributes, and the
contract creating them, may be modified in certain circumstances. The grant of tenure did not
preclude Case Western Reserve University from changing the date of mandatory retirement.
The court found the changes to be valid where the right to amend was reserved in the original
contract or where there was mutual consent of the parties to amend and adequate consideration
was given by the university for the changed terms. Rehor v. Case Western Reserve University,
331 N.E.2d 416 (Ohio 1975). See William Kaplin and Barbara Lee, The Law of Higher
Education (1995), at 93-94, for a more extensive analysis of this case. A contrasting result was
reached in Taliaferro v. Dykstra, 434 F. Supp. 705 (E.D. Va. 1977). The court held that the
retirement age could not be changed unilaterally. Factual elements supporting this decision
included a lack of consultation with the faculty and a lack of understanding in the campus
community (“custom and usage”) that the policy was to be changed.
Absent termination for cause or for financial exigency, it is unlikely that tenure could be
terminated without the consent of the faculty member and adequate consideration to support the
relinquishment of that important right. See Rehor, supra.; Indiana ex rel. Anderson v. Brand,
303 U.S. 95 (1938).
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The presence of, or adequacy of, consideration is a significant element in tenure modification
cases. Although Rehor, supra. found adequate consideration for the policy change in the
acceptance of annual reappointment with a salary increase, the prevalent view reaches the
opposite conclusion. E.g., Karlen v. New York Univ., 464 F. Supp. 704 (S.D.N.Y.); Drans v.
Providence College, 383 A.2d 1033 (R.I. 1978); Fazekas v. Univ. of Houston, 565 S.W.2d 299
(1978).
Merely carrying out one’s employment responsibilities provides insufficient consideration for a
policy change that alters employment status. Sargent v. Illinois Inst. of Tech., 397 N.E.2d 443
(ill. App. 1979). Verbal assurances, even by a Dean, are insufficient to create entitlements,
such as enhanced salary, without “bargained for” consideration.
IV.
Pitfalls in the Promotion and Tenure Process
A.
Inadequate Screening: More prevalent at the time of hiring than later in the process.
Problems in a candidate’s past often go undetected due to lack of diligence.
B.
Unfortunate Representations: Deans make, in the heat of recruiting, statements that can
be problematic, especially if in writing. See Johns Hopkins, supra. Be positive but
careful.
C.
Lack of Clarity Concerning the Tenure “Clock”: The spectre of tenure by default
appears when the candidate’s status isn’t carefully defined. The effect of service at
other institutions, or receipt of advanced degrees, should be clear. Concurrent with
hiring, a tenure status agreement should be executed.
D.
Inadequate Annual Review: Too often, little guidance or constructive criticism is given
to the candidate, resulting in surprise, dismay and possibly a lawsuit when a negative
tenure decision occurs. The failure to conduct an annual review can be the type of
procedural error that review bodies, and courts, are willing to remedy, to the detriment
of the institution.
E.
Inconsistency Between Review and Salary: Too often, a negative or tepid review is
followed by an annual pay raise identical to other, better performing faculty. Use the
salary system as a management tool, and don’t reward your non-performers.
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F.
Failure to Follow Procedures: As Feldman, supra demonstrates, courts are loathe to
intrude into the academic decision making process. But this reluctance does not extend
the procedural error. Internal review bodies are quick to pounce on deviations here, too.
Follow your own rules.
G.
Use of Unstated Criteria: Your policy will define the tenure and promotion criteria.
Draft the policy so that all relevant factors can be considered, then stick to them. Use of
discriminatory, personal or irrational reasons will only lead to conflict.
H.
Emphasize Collegiality as a Factor in Tenure and Promotion Decision: With ADEA’s
removal of mandatory retirement, the award of tenure can be a lifetime commitment.
All benefit from minimizing contentiousness and enhancing civility within a law school.
Collegiality as a factor in tenure decisions has met with judicial approval. Mayberry v.
Dees, 663 F.2d 502 (4th Cir. 1981). For a general overview of the role of collegiality in
tenure and dismissal decisions, see generally Kent M. Weeks, “Contentious Professors
and Collegiality in Managing Departments: Chairpersons and the Law” (1997); Mary
Ann Connell and Frederick G. Savage, “Re-Evaluation Tenure Criteria: The Increasing
Use of Collegiality as a Factor in the Tenure and Promotion Process,” Stetson
University College of Law, Law and Higher Education Conference, February 11, 2000.
I.
Inconsistency: While the infamous “least qualified incumbent” rule is gone, problems
arise if standards are lax one year and stringent the next.
J.
External Review and Letters of Support: Be clear and consistent. Inform the candidate
if his/her dossier will receive external review. Discourage letters of support from nonobjective sources.
K.
Extensions of the Tenure Clock: Unless for medical reasons (including maternity), they
are inadvisable. Tenure by default issues arise as well as non-compliance with ABA
and AAUP standards.
L.
Salary Compression: The effect of salary compression can increase the “stakes” for
promotion from associate to full professor. To mitigate tension and limit disputes
surrounding the promotion decision, periodic reviews of faculty salaries should occur.
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