Tenure, Promotion, and Reappointment: Legal and
Administrative Implications. ERIC Digest.
by Baez, Benjamin - Centra, John A.
This report focuses on the legal implications of reappointment, promotion,
and tenure decisions, with an emphasis on how an understanding of the relevant
legal principles can inform practice. Through the use of scenarios and
cases, we illustrate the conflict between institutional and individual
rights, and the potential legal problems associated with employment contracts,
due process requirements, academic freedom, employment discrimination,
affirmative action, and peer review. Suggestions are offered for minimizing
litigation and protecting institutional and individual rights. Some of
the specific questions addressed in this report are:
WHAT HAS BEEN THE ROLE OF COURTS IN REAPPOINTMENT, PROMOTION, OR
Institutions have a great deal of autonomy and discretion in making
reappointment, promotion, or tenure decisions. Courts are reluctant to
substitute their judgments for those of academic professionals. Recent
legislation now permits the submission of employment discrimination cases
to juries, perhaps making it likely that this reluctance may wane. At any
rate, courts are required to intervene in these matters when the individual
rights of faculty members are threatened. In cases involving discrimination
and the First Amendment, courts seem to grant less deference to institutions
than in other types of cases.
WHAT IS TENURE, AND WHY IS IT THE SUBJECT OF MANY FACULTY LAWSUITS?
Tenure was established to protect faculty members' academic freedom,
and to provide enough financial security to attract able men and women
to the profession. Courts have also established that tenure, once acquired,
is a property interest protected by the Constitution when conferred by
public institutions. Although cases by faculty members against colleges
and universities involve reappointment, promotion, and other issues, the
most prominent cases deal with the denial of tenure. While tenure has benefits
for the institution and the faculty members, it also has financial consequences
for the institution, especially during times of retrenchment. Faculty members
denied tenure suffer financial, professional, and emotional consequences.
As a result, lawsuits in this area are likely to increase.
WHAT CONSTITUTES THE FACULTY EMPLOYMENT CONTRACT?
The faculty contract of employment refers not only to the letter of
appointment but to other professional and institutional policies governing
reappointment, promotion, and tenure decisions. Institutional policies
are included in the faculty handbook, while AAUP policy statements, especially
the 1940 Statement of Principles on Academic Freedom and Tenure, contain
professional policies. Courts have also looked to institutional practices
and customs, and the oral, written, and implied assurances of key administrators
to determine the rights and responsibilities of the parties when the language
of the contract is unclear, ambiguous, or inconsistent. Collective bargaining
agreements are important types of contracts, and they may govern how faculty
members are reappointed, promoted, or tenured. Federal labor law, which
govern private collective bargaining, excludes faculty members who are
considered "managers" and/or "supervisors," and thus the institution may
refuse to bargain with their representatives. Faculty members are more
likely to be considered "managers" or "supervisors" at large, private research
institutions. Faculty members at public institutions may also be restricted
in the collective bargaining ability under their states's labor laws. Collective
bargaining is an extremely complex and unsettled area of law, and institutions
should seek expert legal and administrative assistance in dealing with
TO WHAT EXTENT ARE UNTENURED FACULTY MEMBERS AT PUBLIC INSTITUTIONS
ENTITLED TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION?
The Constitution protects the property interests of faculty members
at public institutions. Before such interests may be denied or withheld,
public institutions must provide their faculty members with due process
protection, including adequate notice and a hearing. Untenured faculty
members at public institutions have due process rights for the duration
of their contracts, but not after the contract expires unless the contract
of employment or state law provides them with a legitimate expectation
of continued employment. Some faculty members may contend that they have
acquired tenure informally. Courts are usually unwilling to find that faculty
members have acquired tenure through informal means, especially if there
are written and explicit policies governing how tenure is acquired. All
faculty members at public institutions are entitled to due process protection
when their liberty interests are arguably infringed. Liberty interests
arise when institutions make charges or allegations against faculty members
that may damage their reputations or impose a "stigma or other disability"
preventing them from obtaining other employment. In negative reappointment,
promotion, or tenure decisions, liberty interests are difficult to prove
because the reasons for the denial are rarely made public, a required condition
for prevailing in such a lawsuit.
HOW DO COURTS BALANCE INSTITUTIONAL AND INDIVIDUAL ACADEMIC FREEDOM
Institutions have the freedom to decide on academic grounds who may
teach, what may be taught, how it shall be taught, and who may be admitted
to study. As a result, courts are reluctant to become involved in academic
matters, such as pedagogy, grading, and course offerings, unless the institutions'
decisions are intended to punish faculty members for their speech. Courts
will become involved in negative employment decisions at public institutions
that are motivated by the faculty members' exercise of their First Amendment
or academic freedom rights. These rights include the freedom to comment
on matters of public concern, the freedom to speak and express oneself,
even if such speech is considered offensive, and the freedom to engage
in certain activities, such as testifying in court cases or engaging in
political or union activities.
HOW ARE FACULTY MEMBERS PROTECTED FROM ILLEGAL DISCRIMINATION IN
REAPPOINTMENT, PROMOTION, OR TENURE DECISIONS?
Although the United States Constitution and state laws prohibit discrimination,
the bulk of the employment discrimination litigation have involved a number
of federal civil rights laws, especially Title VII of the Civil Rights
Act of 1964. Federal civil rights laws provide an easier burden of proof
for faculty members alleging illegal discrimination than does the Constitution.
These laws also provide better guidance to institutions for avoiding discrimination
than many state laws. Given the inherent subjectivity of the promotion
and tenure process, what is considered fair or meritorious is difficult
to determine and will vary from person to person. Furthermore, some policies
or practices adversely affect women and faculty of color. As a result,
employment discrimination cases have been increasing, and colleges and
universities should justify their reappointment, promotion, and tenure
decisions with clear data and careful documentation.
WHAT ARE THE LEGAL BOUNDARIES OF AFFIRMATIVE ACTION IN FACULTYEMPLOYMENT?
Affirmative action in the reappointment, promotion, and tenure process
seeks to accomplish three objectives: eliminate the effects of an institution's
own present or prior discrimination against women and persons of color;
remedy societal discrimination and increase the representation of women
and persons of color in the faculty ranks; and promote racial and gender
diversity on college campuses. But as the current societal and political
debate makes clear, faculty members who do not benefit from affirmative
action may feel that their individual rights have been violated, and that
they have been the victims of "reverse discrimination." Institutions of
higher education may feel that a balance between the goals of affirmative
action and claims of reverse discrimination is impossible to attain. Nevertheless,
institutions have been able to justify affirmative action if they are attempting
to remedy the effects of their own discrimination. In addition, Title VII
currently permits private and public institutions to implement voluntary
affirmative action plans if there is a "manifest imbalance" in the job
market, if the plans are only temporary, and if the interests of faculty
members not benefiting from affirmative action are not unnecessarily "trammeled."
Public institutions, however, are subject to much stronger standards of
justification on constitutional grounds.
WHAT RIGHTS DO FACULTY MEMBERS HAVE TO ACCESS CONFIDENTIAL PEER REVIEW
Faculty members or the EEOC may be able to obtain access to peer review
materials to discover proof of discrimination. Furthermore, in some states,
peer evaluations are made generally available to faculty members under
employee "right to know" or sunshine laws. Although faculty members alleging
discrimination have been given access to their and others' personnel files,
courts have been generally concerned with the impact this disclosure has
on the peer review process. As a result, courts continue to search for
a balance between the importance of confidentiality for the peer review
system and the need to prohibit discrimination in higher education. The
peer review system will likely not suffer from disclosure of confidential
peer review materials. Peer evaluations based on sound and fair reasoning
will always withstand challenges. Even though courts will compel disclosure
in some situations, the decision of whether to voluntarily release peer
review materials to the faculty member is one of institutional policy.
Some institutions currently provide faculty members with, at a minimum,
a redacted (i.e., with identifying information deleted) copy of the peer
review materials, and recent data indicates that the peer review system
is not greatly affected by disclosure of peer review materials.
TO WHAT EXTENT ARE ADMINISTRATORS AND FACULTY MEMBERS INVOLVED IN
THE PEER REVIEW PROCESS LIABLE FOR DEFAMATION AND OTHER TORT CLAIMS?
Although faculty members and administrators involved in the peer review
process can be sued for defamation and other torts, they are usually protected
from liability by state law, or a qualified privilege (Qualified privileges
against liability from defamation and other torts are granted to persons
making employment evaluations, provided they acted without malice or ill
will. The law grants these privileges when the interests at stake warrant
them.). Also most institutions have insurance covering this type of matter.
Peer reviewers can lose this protection if they act with malice, bad faith,
or disclose the information to persons with no legitimate interest in the
matter. So long as they acted honestly and fairly, and provided detailed
examples for their conclusions, administrators and faculty members involved
in the peer review process are generally protected from liability.
WHAT CAN WE DO TO MINIMIZE THE RISK OF LITIGATION?
Administrators, faculty members, and institutional attorneys should
function as a team in informing other administrators and faculty members
about the legal implications of their responsibilities. Legal audits should
be performed periodically. These legal audits involve surveying each office
and function to ensure that policies and practices are in compliance with
legal principles. Furthermore, legal audits and teamwork can serve as an
early warning system that alerts administrators, faculty members, and legal
counsel of potential legal problems, long before they lead to litigation.
Institutions should take steps to minimize the risks from litigation. We
recommend the following:
Institutions should involve legal counsel in determining policy and
procedures for reappointment, promotion, and tenure decisions.
The reappointment, promotion, and tenure policies should be explicit,
unambiguous, and consistent, and these policies should clearly articulate
how tenure is to be acquired.
Institutions should eliminate or minimize those practices that are not
specifically addressed in the institutions' written policies.
Institutional officers and key administrators should be informed that
their actions and words can bind the institutions to a contract.
All units in the institution should be governed by a single reappointment,
promotion, and tenure policy, though the standards may differ among units.
The criteria for reappointment, promotion, or tenure should be specific
enough to provide guidance to faculty members.
Faculty members should be provided with as much information as possible
as they prepare for their reappointment, promotion, or tenure review.
Faculty members should be provided procedural safeguards before they
are released from their contracts.
Institutions should provide orientation and career development for new
Institutions should develop a process of annually evaluating faculty
The faculty member should be apprised of any performance problem with
enough time to improve.
Faculty members should be provided with, at the very least, a redacted
copy of their performance evaluations and peer review materials.
Institutions should commit themselves to ending discrimination and to
take whatever steps are necessary to achieve this end.
Institutions should be conscious of the important legal, political,
and social interests associated with affirmative action.
Individuals involved in the evaluation or review process must be made
aware of the fundamentals of employment discrimination law.
Institutions should establish grievance procedures that are easy to
Institutions should consider adopting binding arbitration or another
method of alternative dispute resolution.
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