Post-tenure Review: Contractual Obligation and Academic Accountability*
Robert
G. Tague
Department of Geography and Anthropology
Louisiana State University
Baton Rouge, LA 70803-4105
The
Louisiana State University (LSU) System issued a revised, permanent memorandum
(PM-35, entitled "Review of faculty ranks"[1]) in May, 2000 that
abrogates a legal contract between the tenured faculty and the University.
PM-35 mandates post-tenure review and provides guidelines for ascertaining
the conditions that warrant revocation of tenure and dismissal of a tenured
faculty member. The stipulation for post-tenure review is within the prerogative
of the University. However, the guidelines in PM-35 for determining unsatisfactory
performance sufficient to terminate employment represent a unilateral
change to the faculty's existing contract and, thereby, is illegal. The
faculty do not have to accept these guidelines in PM-35.
PM-35 specifies post-tenure review by stating that "all members of
the faculty should undergo evaluations to ensure that their academic performance
is commensurate with their rank and status, and that they remain accountable
for their academic performance"[1]. Importantly, a faculty member
can be "remov[ed] for cause"[1] after receiving a series of unsatisfactory
reviews - "after two ... consecutive unsatisfactory regular reviews
or three ... unsatisfactory reviews in a five ... year period [by the
Department Head/Chair]"[1] and after receiving another unsatisfactory
review following the development of "a positive plan to improve those
areas where there are deficiencies"[1]. These guidelines establish
a threshold of unsatisfactory performance sufficient to warrant termination
of employment, but they change an existing contract between the faculty
and University.
A contract is an oral or written agreement between two or more parties,
in which certain rights, expectations, and obligations are explicitly
made. Importantly, an existing contract can be changed only with the mutual
agreement of all parties to that contract. The faculty already have a
contract with respect to the conditions for revocation of tenure and dismissal
from the University. PM-35 changes these conditions and, thereby, changes
our contract with the University. We do not have to accept this change
to our contract.
What is tenure? The LSU Faculty Handbook states that "tenure is the
prediction that a faculty member will continue to make positive academic
contributions throughout the career"[2]. However, tenure is more
than simply an intangible prediction. LSU's Policy Statement-36 (PS-36,
entitled "Criteria for evaluating academic performance, and policy
and procedures on faculty appointment, performance evaluation, reappointment/non-reappointment,
promotion and tenure, appeals procedures") defines tenure as an "indeterminate
appointment"[3,4] of the faculty member with the University. Therefore,
each tenured faculty has a career-based, continuing contract with the
University. When a faculty member is hired at LSU as an assistant professor,
(s)he is typically provided with a three year, written contract. That
contract is renewable for another three years, assuming that the faculty
member makes satisfactory progress toward earning tenure. After the second
three year contract has expired, then the University either awards the
faculty member tenure or dismisses her/him from the institution. Upon
earning tenure, the faculty member is no longer provided with a written
contract of determinate or specified duration. Rather, PS-36 explicitly
states that the tenured faculty member has an "indeterminate appointment"[3,4],
that is, a continuing contract. The University has no legal right to change
this contract without the faculty's consent.
If the faculty do not have a written contract, then what are the conditions
for the revocation of tenure? The LSU Faculty Handbook defines these conditions
as being "any conduct that is demonstrably prejudicial to the University"[5].
"Prejudicial conduct" is not further defined. Therefore, we
must resort to "common law" (i.e., past precedent) to interpret
and understand prejudicial conduct. That is, prejudicial conduct is defined
by the prior caseload in which tenured faculty members at LSU (or, perhaps,
tenured faculty at all other universities in the United States) actually
had their tenure revoked and were dismissed from the University. I have
not investigated this caseload, but gross academic malfeasance or egregious
moral behavior were likely the conditions for prejudicial conduct. PM-35,
however, specifies new conditions for revocation of tenure and termination
of employment - three or four unsatisfactory annual reports. These conditions
in PM-35 are not the same as those in our current contract. A few unsatisfactory
annual reports are not equivalent to prejudicial conduct as defined by
past precedent.
The guidelines in PM-35 do become legally binding if the faculty consent
to them. If the faculty agree to these guidelines, then we agree to a
change in our contract with the University. However, as the faculty at
LSU do not have a legally recognized organization, such as a union, to
renegotiate our contract, then each faculty member has the legal option
to accept none, some, or all of the guidelines in PM-35 with respect to
the conditions for revocation of tenure. As each tenured faculty member
has an existing, continuing contract with the University, the administration
cannot change the conditions for revocation of tenure without each faculty
member's consent.
I recommend that the tenured faculty take two actions. First, when (or
if) the faculty submit reports that pertain to a post-tenure review, we
write on that report that we reject the guidelines in PM-35 stipulating
the conditions for revocation of tenure. That is, we do not agree to these
changes to our current contract. If the faculty are not explicit in this
protest, then we may be implicitly accepting this contractual change.
Second, the faculty as a group should hire legal representation to challenge
PM-35 with respect to tenure. Individual faculty do not have the financial
wealth to challenge the University in court for a protracted period of
time. Therefore, we should treat this legal challenge as a "class
action" suit. Each tenured faculty member at LSU is affected by the
changes in tenure as stipulated in PM-35. Therefore, we constitute a "class"
of people. If each of us brought a lawsuit challenging PM-35, then the
series of individual lawsuits would be redundant because they pertain
to the same issue. Consequently, we coalesce all of our individual suits
into a single "class action" suit.
I recommend these actions not as an intransigent, obstinate faculty member
out to block the enhancement of excellence at LSU or to avoid being held
accountable for my performance. I profoundly enjoy my association with
the LSU, and I have always promoted the institution to my professional
and nonprofessional colleagues, and to current and prospective students.
Rather, I recommend these actions to protect the contractual rights that
each of us has earned from our prior work. The faculty have an existing
contract that defines tenure and the conditions for its revocation. We
should only accept a change in that definition if the change is in our
best interest. The stipulations in PM-35 are not in our best interest.
We are not obligated to accept the guidelines in PM-35.
Regrettably, the administration can unilaterally change the contractual
conditions associated with tenure for those faculty hired in the future.
I am not sure of the legal rights of current faculty who are not yet tenured.
These nontenured faculty may be a part of the legally protected class
of tenured faculty because they accepted the job at LSU with the understanding
that they would earn tenure as currently defined in the Faculty Handbook
and PS-36.
What can the faculty do to convince the administration that tenure should
not be redefined- Why should the current system of tenure be retained?
Presently, tenure is an "indeterminate appointment"[3,4] which
can be revoked only for "conduct that is demonstrably prejudicial
to the University"[5]. Therefore, tenure impedes administrative flexibility.
There are a number of reasons for the retention of tenure; I will comment
briefly on one of them. Tenure provides the academic the opportunity to
"think big." With tenure, a faculty member can pursue new research
endeavors or long term projects without the burdensome concern of dismissal
from the University if the project fails. Some big projects fail. However,
some big projects succeed. For the academic, tenure provides the certainty
of employment while we strive to achieve the most from our talents. Failure
in some endeavors is inevitable for all of us. If we are under the stricture
of possible dismissal from the University for a few unsatisfactory annual
reports, then most faculty will be reluctant to pursue these big projects.
No tenured faculty wants the stigma of being on some probationary status.
Rather, we will try to satisfy the short-term standards in accountability.
We likely will pursue small projects and write brief reports that are
readily published in second-tier journals. That activity will ensure satisfactory
annual reports. We will be less likely to try to learn a new research
approach. That takes time, but each faculty member has the overhang of
possible revocation of tenure and dismissal from the University for a
few unsatisfactory reports. The long-term implication is that faculty
will be cautious and less daring in research, and academia will become
pallid.
There is a potential benefit to the faculty with this change in the definition
of tenure. Basically, tenure would be a contract of negotiable duration.
Therefore, we will be able to move from one university to another with
greater ease than today. However, this increased mobility will only be
possible when all universities change to this redefinition (or elimination)
of tenure. Some faculty deride their administration for being more of
a follower than a leader, more reactive than proactive. With respect to
PM-35, the faculty do not have an interest in the University being a leader
in the new definition of tenure. In this instance, our interest is to
have the University be a slow follower rather than a national leader.
We have absolutely nothing to gain in terms of our careers or the enhancement
of excellence at LSU by accepting PM-35. Resist PM-35 not because of intransigence.
Resist it because we earned tenure as defined by the University in the
Faculty Handbook and PS-36, and because we regard tenure as the means
to ensure the academic excellence for ourselves and for our University.
The highest academic achievement is possible only with the concept of
a career-based tenure.
In conclusion, the faculty have an existing contract with the University
with respect to tenure. We do not have to accept the guidelines in PM-35.
If necessary, we must challenge its legality.
References Cited
*Presented at the symposium: "Academic Tenure, Academic Freedom, and Post-tenure Review" in 2001 at the Louisiana State Conference of the AAUP.
1. http://appl003.ocs.lsu.edu/ups.nsf (2001).
2. http://aaweb.lsu.edu/handbook (2001):13.
3. http://appl003.ocs.lsu.edu/ups.nsf (2001).
4. http://aaweb.lsu.edu/handbook (2001):62.
5. http://aaweb.lsu.edu/handbook (2001):30.
