[AAUP Letterhead]
August 27, 1998
Professor Robert W. Glenn
105 McClung Tower
University of Tennessee
Knoxville, Tennessee 37996-0405
Dear Bob:
This is in response to your August 18 and 21 questions and request for comments regarding the revised University of Tennessee policies as adopted by the Trustees on June 18. Thanks for sending along the entire document; we are better positioned to react to specific provisions if we see them in the context of the policies as a whole. Aside from the provisions to be discussed, I should say at the outset, the policies generally adhere quite closely to AAUP's recommended standards. Let me begin with your two points.
First, with regard to H.1.(c), A(1) on page 9, your concern with "failure to demonstrate professional competence" as cause for dismissal is certainly justified. As is stated unequivocally elsewhere in the document as well as in AAUP's applicable standards, the burden of demonstrating adequate cause, through clear and convincing evidence, rests with the administration. I would change the above-quoted language to "professional incompetence," with it understood that this is for the administration to demonstrate. Further along in (1), and indeed in the heading for Category A, I am bothered by the "or" in "teaching, research, or service." Surely a professor who is a brilliant teacher and researcher yet who is inept in fulfilling a service assignment (we all know of such people) should not be dismissed for cause. I would change the "or" to "and."
Second, with regard to Appendix C.7 on page 23, it almost goes without saying that a dismissed or suspended faculty member who is subsequently cleared of the charges that led to the action needs to be "made whole." Typically, in official university policies, this is an unstated assumption.
Proceeding with other comments, I shall do so in the order in which the matters of concern appear in the document, beginning with provisions in G., "Evaluation of Tenured Faculty Members," on pages [7, 8]. As I read G.1., every faculty member is to be evaluated formally every year and then officially rated (by the department head?) "outstanding," satisfactory," or "unsatisfactory." These ratings seem disturbingly simplistic. I would not want to be required each year to determine, among all those who have been doing a good job, which are in the high range of "satisfactory" and which in the low range of "outstanding." I am also bothered, in G.1., by the provision that anyone who is ranked "unsatisfactory" in a given year is "ineligible for rewards (e.g., salary increments)." Does denying someone an across-the-board increase encourage that person to do better the following year? (Perhaps it might, in some cases; the concern is with making the person branded "unsatisfactory" categorically ineligible.) Addressing the case of the faculty member who is rated "unsatisfactory" under the formal evaluating process for the second consecutive year, G.2 calls for "a rigorous and thorough review" within the next thirty days of that faculty member's performance. Beyond providing for a review committee with widespread membership to conduct this review, the document is silent on what is to make this review "rigorous and thorough" as distinct from the two previous reviews that resulted in an "unsatisfactory" rating. In any event this review, assuming concurrence in the "unsatisfactory" rating, is to result either in the immediate recommendation of dismissal proceedings or up to a year of attempted remediation and then, if the faculty member's performance is still deemed "unsatisfactory," a recommendation for dismissal.
There is a mechanistic "two or three unsatisfactories and you're on your way out" about the foregoing which does not recognize that the tenure commitment is deep and that removal of a professor's tenure is by no means routine. Note, in contrast, the two concluding paragraphs of our "Post-Tenure Review: An AAUP Response."
In the event that recurring evaluations reveal continuing and persistent problems with a faculty member's performance that do not lend themselves to improvement after several efforts, and that call into question his or her ability to function in that position, then other possibilities, such as a mutually agreeable reassignment to other duties or separation should be explored. If these are not practicable, or if no other solution acceptable to the parties can be found, then the administration should invoke peer consideration regarding any contemplated sanctions.
The standard for dismissal or severe sanction remains that of adequate cause, and the mere fact of successive negative reviews does not in any way diminish the obligation of the institution to show such cause for dismissal in a separate forum before an appropriately constituted hearing body of peers convened for that purpose. Evaluation records may be admissible but rebuttable as to accuracy. Even if they are accurate, the administration is still required to bear the burden of proof and demonstrate through an adversarial proceeding not only that the negative evaluations rest on fact, but also that the facts rise to the level of adequate cause for dismissal. The faculty member must be afforded the full procedural safeguards set forth in the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings and the Recommended Institutional Regulations on Academic Freedom and Tenure, which include, among others, the opportunity to confront and cross-examine adverse witnesses.
Included as adequate cause for dismissal in H.1.(c)A(2) on page 9 is "failure to comply with a lawful directive...." Believing that only vary rarely would a single instance of such failure be considered cause for dismissal, I would make "directive" plural. Also there are directives that are "lawful" yet violative of academic freedom. I would therefore change the quoted language to "failure to comply with legitimate directives...."
H.1.(c)B(5) on page 10 is also bothersome. The preceding (1) through (4) address, properly, very serious kinds of misconduct, and it is simply too loose a standard to add to them, in (5), "any misconduct" directly related to professional performance as cause for dismissal. I would urge its deletion.
I have two important comments relating to suspension from responsibilities pending completion of dismissal proceedings. The enclosed joint (AAUP and AAC&U) 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, in No. 3, sets an "immediate harm" standard for suspension and says that the suspension should be with pay. The University of Tennessee policies address suspension first in Appendix B, No. 3 (page 15), without setting any standards. Under Appendix C, No. 3 (page 21), the suspension, for certain kinds of alleged misconduct, can be without pay. We urge that the provisions on suspension be revised to conform with those in the 1958 Statement on Procedural Standards, to which the great preponderance of American universities adhere.
My next comment is with reference to Appendix B., No. 8, on page 19 ("Review by the Board of Trustees"). The 1958 Statement on Procedural Standards calls, in No. 7, for the governing body, in the event that it disagrees with the faculty hearing committee's decision, to remand the case to the committee for further consideration before it takes final action. We recommend that this provision for remand be added to the University of Tennessee policies.
Appendices B and C are silent with respect to any severance salary, in contrast to the provision in the 1940 Statement of Principles on Academic Freedom and Tenure for a year of severance salary in all cases not involving moral turpitude.
Last but not least, I turn again to Appendix C.7 (page 23) to convey AAUP's concerns over the "Expedited Procedure" that allows, in certain cases, cessation of salary and dismissal from the faculty prior to an adjudicatory hearing on the charges and affordance of other requisite safeguards of academic due process. This "expedited" procedure is inimical to the regular, generally recognized procedure set forth in the policies as the norm, and it is fundamentally unacceptable to AAUP.
I hope that these comments prove useful. Feel free to call upon me again with anything further.
With good wishes.
Sincerely,Go to UT Tenure Policy page.