Running head: CARELESBERG CASE
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Carlesberg University
Sean O’Connell
EDU-7253 The Legal Environment of Higher Education
9/19/13
CARELESBERG CASE
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Carlesberg University
The Carlesberg University (1990) case centers on a faculty member requesting arbitration
after being denied tenure, and, more importantly, the president’s response in the wake of this
development. This case examines the quality of policy and procedures for the tenure process at a
particular university, the cultural and ethical factors that play a role in upper administrative
decisions, and the way in which tenure decisions may be challenged in court by a plaintiff who
feels that the decision was discriminatory.
Basic Empirical Facts of the Problem
This case focuses on a college president’s decision: whether to overturn a committee’s
“no vote” on a faculty member being considered for tenure, or face arbitration, as requested by
the faculty member’s attorney. The president, Lauren French, is torn because she knows that the
tenure committee’s decision-making process about the candidate, education professor Barbara
Minto, lacked integrity and may even be considered discriminatory. For one, the proceedings
were hasty; according to another member of the committee, Joyce Dahlke, not enough time was
given to the discussion of the candidate for tenure. Second, according to Dahlke, the head of the
committee, Marshall Amesbury, made comments that could reflect gender discrimination; he
said there were too many tenured female professors in the education department, and if Minto
was tenured the college could potentially face a lawsuit accusing the college of favoring women.
(It’s ironic that in his effort to stave off a lawsuit based on sexism, he may have opened the door
to one.) Third, according to Dahlke, other members of the tenure committee who were also in
the education department were intimidated by Amesbury, the Vice President and Provost of the
college, fearing that he disliked their department and would retaliate against them if they
disagreed with his decision to deny Minto tenure.
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President French feels that tenure decisions should be confidential, so the prospect of
arbitration scares her, knowing that many private discussions would now become public.
Moreover, now that she knows about the dynamics of the tenure committee and some of the
specific conversations that ensued among its members, President French recognizes that
arbitration could open the college to a litany of criticisms, most notably the accusation that Minto
was denied tenure because of her gender, a situation that would surely result in a lawsuit. At the
same time, she feels that according to the college’s policies and procedures for tenure, they have
followed through with everything that’s required of them and that Minto was treated fairly. In
this way, she thinks that if arbitration were to happen, there’s a good chance it would favor the
college. Nevertheless, she still thinks: is it worth the risk?
Causes and Antecedents
There are several causes and antecedents that have led up to the point where President
French faces this difficult decision. One of the main ones is that Minto, in her application for
tenure, was approved initially by her department; it is the college-wide committee that has now
rejected her. This reflects the tensions that existed in the college committee, where some of the
members were from the education department. When dealing with committee’s chair, Marshall
Amesbury, some of these members were purportedly intimidated into voting alongside him.
Moreover, according to college policy, a college-wide tenure committee could not substitute
their judgment about “professional expertise” over that of the departmental committee.
Another cause is the candidate’s portfolio. Though recognized as being a great teacher
and respected member of professional organizations, her written scholarship was not adequate.
This was the primary reason for her tenure denial at the college-wide level, but obviously it was
deemed proficient by her department, suggesting a tension between the two.
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The nature of the president’s position at Carlesberg University is also particularly
pertinent because she is the sole decision maker in matters like this. She can override a
committee’s decision and then put her decision before Board of Trustees. Moreover, she was the
one who was solely responsible for faculty grievances, issues that formerly had been handled by
a Dean of Faculty. In this way, there is great pressure of President French to act.
Lastly, and perhaps most importantly, President French is well aware that accusations of
employment discrimination could result in lawsuits, and that Amesbury’s comment about the
imbalance of men and women in the education department, and how this is a reason to not tenure
Minto, could lead to litigation. Obviously, this could hurt the college financially, but it could
also have harmful effects on its reputation and overall level of prestige.
What Other Information Is Needed
Because the college tenure committee said that lack of scholarship was the reason for
denying tenure to Minto, it would be useful to have more information about what constitutes
legitimate scholarship in the eyes of the committee. If scholarship was clearly defined, was
Minto aware of the expectations for it, and did she perceive that she was meeting these
expectations? Moreover, during the years preceding her tenure review, was she ever alerted to
the fact that her scholarship needed to be improved in order to meet university’s expectations?
It would also be useful to know more about Amesbury’s personality. Is he well liked or
generally feared on campus, as seemed to be the case within the tenure committee? Is he
someone who would retaliate unfairly against those who disagree with him, or did the members
of the education department simply misperceive him as being this way?
Lastly, if this case goes to arbitration, who would be the arbitrator? Obviously, this
should be a neutral party who will be impartial and fair in considering the evidence on both sides
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of the case. Yet, could this arbitrator be biased towards one side or the other based on past
experiences in this arena?
Warranted Actions
Although President French feels confident that the college would prevail if the case goes
to arbitration, she’d be wrong in taking this risk. Instead, because it’s within her power to make
decisions about tenure, she should overrule the committee and grant Professor Minto tenure. She
should take this course of action because of the likelihood that a lawsuit could result from
information disclosed during arbitration. If the tenure committee’s conversations were made
public, committee-head Amesbury’s alleged misdeeds – his rushing the committee to make a
judgment, his perceived intimidation of the education faculty, and his unfair reasoning that
another tenured female faculty member in the education department could make the department
look sexist, an act that, one could assert, is sexist in itself – could lead to litigation and result in
depleted financial resource and a damaged reputation.
It’s important to note too that if the case went to court, the court would not being
deciding whether or not Minto was worthy of being tenured, but instead rather she’d been treated
unfairly in the process. Although some courts are becoming increasing their involvement in
higher education affairs (Gajda, 2009), in general, courts are reluctant to interfere with academic
decisions and acknowledge that this is not their area of expertise (Mullaney & Timberlake,
1994). Nevertheless, an infringement of ones right to be treated fairly in a tenure review could
certainly result in negative consequences for an academic institution, and this, one could argue,
is what happened to Minto.
In addition to granting Minto tenure, there are other actions that President French could
institute to make sure a similar situation doesn’t arise again at Carlesberg. For one, assuming
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that Minto was unaware of the research expectations she needed to meet for tenure, there should
be a clearer definition of what constitutes sound research and how these research expectations fit
into the broader goals of the institution (Perna, 2001). For a candidate like Minto, who received
positive reviews for her teaching and service, it’s surprising that she fell short of the research
expectations, and one wonders whether these expectations were transparent in the first place. If
not, they need to be more clearly articulated to tenure-track faculty in the future.
Lastly, President French must take stock of the culture of her institution and work to
make it a more civil environment. Admittedly, tenure decisions might elicit disagreements
between committee members based on past interactions and everyday campus politics (Hearn &
Anderson, 2002), but the allegations shared by committee member Dalke make the tenure
committee’s deliberations, particularly those of committee-head Amesbury, appear
unprofessional at best. It was reported that Amesbury rushed the deliberation, intimidated his
fellow committee members, and judged the candidate, at least in part, on her sex. If this were the
case, the President needs to take measures to foster a more respectful climate between and within
faculty and administration on campus. This change of culture on campus could make for a
stronger community overall (Tierney, 1997).
In conclusion, yes, President French does have a legitimate concern that a breach of the
private nature of a tenure committee’s deliberations can lead to a weakening of one of higher
education’s most important values, that of confidentiality and peer review (Weeks, 1990).
Nevertheless, if the tenure committee’s proceedings were closely examined during litigation and
found to be either sexist or political in any manner (Toma & Palm,1999), both of which could be
likely based on the actions of Chairperson Amesbury, the consequences could be far greater.
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References
Gajda, A. (2009). The trials of academe: The new era of campus litigation. Harvard University
Press. Cambridge, Massachusetts.
Hearn, J. C., & Anderson, M. S. (2002). Conflict in academic departments: An analysis of
disputes over faculty promotion and tenure. Research in Higher Education, 43(5), 503529. Retrieved from http://0-www.jstor.org
Mullaney, J. W., & Timberlake, E. M. (1994). University tenure and the legal system:
Procedures, conflicts, and resolutions. Journal of Social Work Education, 30(2), 172-184.
Retrieved from http://0-www.jstor.org
Perna, L. W. (2001). Sex and race differences in faculty tenure and promotion. Research in
Higher Education, 42(5), 541-567. Retrieved from http://0-www.jstor.org
Tierney, W. G. (1997). Tenure and community in academe. Educational Researcher, 26(8), 1723. Retrieved from http://0-www.jstor.org
Toma, J.T. & Palm, R.L. (1999). The academic administrator and the law: What every dean and
Department chair needs to know. ASHE-ERIC Higher Education Report (Vol. 26).
Washington, D.C.: The George Washington University, Graduate School of Education
and Human Development. ISBN 1-878380-85-0
Weeks, K. M. (1990). The peer review process: Confidentiality and disclosure. The Journal of
Higher Education, 61(2), 198-219. Retrieved from http://0-www.jstor.org