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Faculty Affairs Committee
January 1999

Statement on Academic Freedom and Due Process Issues

[This report was approved by the Faculty Affairs Committee of the UTK Faculty Senate in January 1999.
It appears as Appendix B in the report of the Senate's Ad Hoc Coordinating Committee on Tenure Policy.]

In June 1998 the Board of Trustees of the University of Tennessee revised procedures for granting tenure and for reviewing tenure appointments. The Trustees' policy document has been amended by a UTK task force to indicate how the procedures will be implemented on the UTK campus.(1) The Faculty Affairs Committee of the Faculty Senate was charged in September 1998 with the responsibility to examine the procedures "with regard to due process and faculty rights and responsibilities," a task the Committee addresses by recommending due process guidelines for various steps of the Trustees' appointment and review procedures, and by noting without recommendation that conflicts exist between some procedures and sound institutional practice.

It may be useful to review briefly the duties of the Faculty Affairs Committee. The Faculty Handbook of the University of Tennessee, Knoxville, assigns to the Faculty Affairs Committee two duties, advice and mediation. The Committee is asked to provide advice concerning "development of criteria and procedures for faculty appointment, promotion, the granting of tenure, and discharge for cause." And the Committee is asked to provide mediation--through fact-finding and informal consultation or through formal grievance procedures--in employment matters such as "work assignments, performance evaluations, salary adjustments, imposition of discipline for misconduct, promotion and/or tenure with regard to procedures, and termination of employment."(2) It is in regard to these areas of concern that the Committee examines the new procedures concerning promotion to tenure and the review of the performance of tenured faculty.

Our examination is based on these assumptions. First, we endorse with enthusiasm the Trustees' statement that "A healthy tradition of academic freedom and tenure is essential to the proper functioning of a University." The teaching and research missions of the University of Tennessee require that faculty have the freedom to pursue innovative lines of inquiry without jeopardy to their careers. Second, we believe in firm and fair application of objective rules of academic due process. Rules for appointment, promotion, review, and dismissal should be based on sound institutional practice,(3) should be embodied in University operating procedures such as unit bylaws and the Faculty Handbook, should be revised only following consultation with the faculty, and should be applied equitably and without bias. It is especially important at a time when decisions that were once the prerogative of the academic institution are increasingly being made by courts(4) that the University be able to defend personnel decisions as grounded in objective and equitable procedures. And third, we believe in shared governance, which includes active participation in the development and operation of procedures for appointment, promotion, review, and dismissal. The role of the faculty in these matters is, as the Faculty Handbook says, indispensable; the faculty's advice "cannot be lightly given or peripherally received" (§1.7: 22). One corollary of the principle of shared governance is that faculty must accept the responsibility to participate with candor in peer reviews.

Regulation of the Academy: We recommend adding the following as a numbered paragraph between paras. 6 and 7 in the introductory section ("Academic Freedom and Responsibility of the Faculty Member") of the Trustees' document: "Academic freedom does not mean that accountability is absent but that control of academic decisions should remain within the institution rather than shifting to political or legal bodies. The best protection against external regulation of the academic community is evidence that the community is regulated well internally. If faculty do not want others to decide who shall belong to the academic community, it is the duty of faculty to make wise and candid judgments themselves about who should become and should remain a member of their community. One consequence of this principle is that the faculty voice must be primary in the evaluation of their peers."

Personal Speech: In paragraph 4, the Trustees urge faculty to "use care in expressing personal views in the classroom" and to avoid introducing "controversial matters that have no relation to the subject taught." To make it clear that the purpose of the paragraph is neither to avoid controversy nor to prevent expression of the instructor's personal views about the subject matter, we recommend substituting the following language for that currently in paragraph 4: "A faculty member is entitled to freedom in the classroom in discussing the subject, including expression of ideas and opinions that might be considered controversial, but should be careful not to introduce controversial matters that have no relation to the subject taught, and especially matters in which he or she has no special competence or training and in which, therefore, the faculty member's views cannot claim the authority accorded his or her professional statements. Controversy relating to the subject being taught should not be discouraged, but as a matter of professionalism and fairness to students teachers should avoid introduction of extraneous material having no relation to the subject."

Intramural Speech: The Trustees' document (Academic Freedom.7) has appropriate language on the rights and responsibilities of faculty concerning extramural speech. The document does not explicitly address intramural speech--speech outside the classroom but still within or concerning the institution, about such matters as state funding, administrative decision making, allocation of funds, employee benefits, and academic freedom. These matters may at times be related directly to the academic mission of the university and so fall under the protections of academic freedom, but may in other cases have only a distant relationship to teaching and research. We recommend addition of a paragraph identifying intramural speech as "academic" or as "professional," and as deserving protection on the ground that the free expression of opinion is essential to the process of shared governance.(5)

Annual Retention Review: The Trustees' policy provides for annual performance reviews of tenured faculty but is silent as to annual reviews of probationary faculty. We recommend that when the Trustees' policy is incorporated into the Faculty Handbook the language in the existing Handbook concerning "annual retention review of probationary faculty" (§2.14.2: 43) be kept, either following the discussion of criteria for tenure in the body of the Trustees' policy or in Appendix A.

Appropriate Interaction Standard: Criteria for tenure in the Trustees' policy statement include--in addition to those concerning teaching, research, and service--what seems to be a fourth standard, "the faculty member's ability to interact appropriately with colleagues and students." In the next sentence which was added by the task force that standard is defined as follows: "Faculty are expected to become good, solid teachers who work enthusiastically with students, try new approaches to pedagogy, and contribute to the development of department programs." With that definition, the standard of "appropriate interaction" becomes less vague and less susceptible to misuse. We recommend that the definition be made still more concrete by linking "interaction" to such job responsibilities as the course management duties outlined in detail in Hilltopics and willingness to cooperate with colleagues in professional contexts. The standard should be specific and objective and be related to assigned responsibilities in teaching, research, and service. Also, we note that the "appropriate interaction" standard seems to be a criterion for awarding tenure and not a criterion for judging the performance of tenured faculty. We do not recommend that performance review procedures be revised so as to apply the standard to tenured faculty as well, since even with definitions a standard of appropriate interaction (or collegiality or good work relationships) will always be subjective and liable to biased application.

Notice of Nonrenewal: Neither the Trustees' policy nor the Faculty Handbook invites the probationary faculty member whose employment is not being renewed to seek an explanation of the decision. We believe the invitation should be made, on grounds of courtesy, professional development of a colleague, and protection against discriminatory practice. Those considerations apply especially to faculty who are in the late stages of the probationary period; colleagues whose service warranted employment for several years are entitled to know, upon request, why their service is no longer needed.(6)

Retention of Faculty Rights: The Faculty Affairs Committee expects that protections of faculty rights currently stated in the Faculty Handbook will be retained once the Trustees' policies are incorporated. For example, the current Faculty Handbook acknowledges the right of the candidate whose application for tenure has been denied to receive upon request the reasons for the decision and the right of a probationary faculty member to appeal a decision not to renew an appointment (§2.14.2: 44, 45). In particular, the Faculty Handbook provides for appeal to the Faculty Affairs Committee under "special appeals procedures" (limited to a review of the process followed) for nonrenewal decisions where discrimination or violation of academic freedom is alleged (§3.3.3:55-56). These policies are consistent with the procedural standards recommended by AAUP(7) and should remain in UTK's Faculty Handbook.

Rating Categories: The Trustees say that the award of tenure acknowledges "a reasonable presumption of the faculty member's professional excellence, and the likelihood that excellence will contribute substantially over a considerable period of time ..." to the institution (Tenure.D). It is inconsistent to "presume" excellence and then every year to distinguish performances as outstanding, very good, good, needs improvement, and unsatisfactory. For purposes of post-tenure review, a simpler policy would have two categories, satisfactory and unsatisfactory. A "satisfactory" rating would be understood as confirming the stated presumption of excellence; by assigning an "unsatisfactory" rating, the department head would be assuming for the institution the burden of proving that the presumption does not hold in a given case. For purposes of administrative decisions about merit pay increases and initiating development plans, a narrative describing performance and justifying the recommendation would be required. Just as a reasoned argument would need to be made that one faculty member's performance is unsatisfactory, so the department head would make in the performance review narrative a reasoned argument that another faculty member made such an exceptional contribution to the institution that he or she merits special consideration for rewards. Such a system would have the advantages of being consistent with the language of the Trustees' policy, being easier to administer, and--given that the evaluations will be made public--being less harmful to collegiality and to faculty-student relations.

Burden of Proof: The Trustees' policy, as amended by the task force, counts annual performance reviews as evidence in a cumulative review; and though the Trustees' policy does not say so explicitly, the annual performance reviews would apparently be evidence considered by a Review Committee, at a TUAPA hearing or a tribunal hearing, and by the several levels of administrative review in a dismissal case. The Trustees' policy acknowledges a presumption of the faculty member's excellence and a burden on the part of the institution to prove otherwise, but that burden could be met in part by the use of annual reviews as evidence. Two consequences would follow. First, the annual review would become a summative process despite the intention of most parties that it be formative. Second, faculty would--and should be encouraged to--regard sub-satisfactory ratings as initial steps in a possible dismissal proceeding and so should consider all appropriate responses. If annual reviews are to be introduced as evidence in later proceedings, it is important that the annual reviews meet a high standard for accuracy and fairness. That standard is "burden of proof." If a department head decides to rank the performance of a tenured faculty member as "needs improvement" or as "unsatisfactory," the department head must assume for the institution the burden of proving that the presumption of excellence conferred by the award of tenure should be overthrown.

Confidentiality: The task force revision of the Trustees' policy includes this language: "Within the limitations imposed by Tennessee statu[t]es, every effort shall be made to maintain confidentiality of these records in accordance with AAUP standards" (Tenure.G.2). The policy statement from AAUP dealing with access to records reflects strong division of opinion, with those supporting closed records believing that candor in the peer review process requires assurance of confidentiality and with their opponents believing that the disclosure of records is protection against discrimination.(8) The AAUP committees which drafted the policy statement concluded that all faculty members should always have complete access to their own files, that information such as that in a curriculum vitae should be public, that the faculty appeals committee should have access to unredacted files of a complainant and colleagues with whom the complainant might be compared, and that the appeals committee should make available to the complainant the unredacted and relevant files of other faculty, "having due regard for the privacy of those who are not parties to the complaint." Confidentiality of these records cannot be guaranteed in light of AAUP's recommendations and the limitations of Tennessee statutes, and so we recommend that the task force statement about confidentiality be deleted.

Merit Pay Increments: The task force addition to the Trustees' discussion of cumulative performance reviews includes this language: "Faculty members whose performance is found through the cumulative review process to be outstanding, very good, and good are eligible for merit pay increments according to a schedule established by the University of Tennessee, Knoxville" (Tenure.G.2). The assumption seems to be that merit pay will be tied to the cumulative review; in fact, at a public forum in November a department head in Arts and Sciences identified as one of the difficulties involved in implementing the new policies the likelihood that there will be a large number of faculty applying for inclusion in the first pool for cumulative review so as to be eligible for merit pay increases. But there is no language in the Trustees' policy itself which links eligibility for a merit pay increase to the outcome of the cumulative performance review. To the contrary, the only language about "rewards" occurs in the section on annual performance reviews. The task force revision of the Trustees' language says, "The results of these [annual] evaluations will be used to reward faculty performance," and later in the Trustees' original language, "A faculty member whose performance is deemed to be unsatisfactory shall be ineligible for rewards (e.g., salary increments)." There are reasons of equity and sound management practice to prefer the use of annual performance reviews as well as cumulative reviews in awarding merit pay.

Review Committee: The Trustees' policy provides that a department head shall convene a Review Committee to examine the performance of any faculty member whose work in two consecutive annual reviews or in one cumulative review has been judged to be unsatisfactory; the Review Committee shall conduct a "rigorous and thorough review" of the faculty member's work, perhaps leading to a judgment that the work of the faculty member has been unsatisfactory and then to a recommendation by an action group that termination proceedings be initiated. We find Jordan Kurland's comment on this provision to be cogent: "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."(9) Accordingly, and in view of the gravity of the decision the Review Committee is asked to make, we recommend that the task force develop a description of the Review Committee process that is as specific as to the procedures the Committee is to follow and the protections afforded to the tenured faculty member as is the description of the Cumulative Performance Review.

Criteria for Initiating a "Development Plan": If one cumulative review or two consecutive annual reviews result in ratings of unsatisfactory, the automatically-triggered Review Committee will judge the work of the faculty member. If the Review Committee also concludes that the faculty member's performance is unsatisfactory, an action group consisting of the department head, the Dean, the Vice Chancellor, and the Senate President or Senate Executive Committee will consider the case. The Trustees' policy (Tenure.G.3) says the action group "shall reach consensus on one of two actions"--initiation of a development plan in order to try to rescue the faculty member or direct movement to termination proceedings. The Trustees' document is silent as to the substantive and procedural criteria for making that decision. What is a consensus? What happens if the action group fails to "reach consensus"? And most important, what considerations should lead the action group to elect termination rather than an effort at development? We recommend that the task force clarify the standards and procedures for the decision of the action group.

Development Plans: The Trustees' policy (Tenure.G.3.a and Appendix B.1) anticipates that a case might arise in which the institution would initiate termination proceedings without having made the kind of affirmative effort to correct problems which is described in the paragraph at Tenure.G.3.b.(10) Should that happen, we would regard the failure to be shared by the faculty member and the institution. The description of the consequences of an unfavorable Annual Performance-and-Planning Review should add to the duties of the faculty member ("develop a written statement of area(s) needing attention," "provide to the department head a written interim progress report of steps taken to improve performance") a similar statement of the obligation of the institution to provide guidance and material support. Likewise, at Appendix B.1.B, the description of the department head's recommendation concerning termination should be revised to include the following italicized language: "The head's recommendation shall include ... the history of efforts to encourage and assist the faculty member to improve his or her performance...."

Suspension without Pay: The Trustees' policy concerning "Disciplinary Sanctions Other than Termination for Adequate Cause" (Tenure.I.1st para.) leaves several questions unanswered. The paragraph says that ordinarily in cases of suspension without pay the accused will be offered normal due process procedures but that at the Chancellor's discretion suspension without pay can be imposed summarily. This is a serious erosion of normal due process, especially bothersome in view of the broad criterion for identifying misconduct at Tenure.H.1.c.Category B.(v) ("any misconduct"). We see no justification for suspension without pay absent prior due process. At the very least, language should be added to the paragraph clarifying the circumstances that would justify such an action. Also, in the same paragraph, there is no indication of the origin of this action. Is it initiated by the department head, as are the Appendix C misconduct proceedings? And the paragraph should be amended to state explicitly that normal due process measures--including appeal to the President and the Board of Trustees--are available to the faculty member after suspension.

Notice of Misconduct Charges: The Trustees' policy (Appendix C.1.A-C) says a department head considering misconduct charges against a faculty member will consult with tenured colleagues of the accused and then send a recommendation to the Dean and the Vice Chancellor, and that the Dean will also send a recommendation to the Vice Chancellor. At that point if the Vice Chancellor "concludes termination proceedings should be initiated" the Vice Chancellor will call the accused in for a conference. There is nothing in the procedures which would prevent that call from the Vice Chancellor being the first notice the faculty member has that he or she is being accused of misconduct and that termination proceedings might be initiated soon. We believe that the department head's written recommendation to the Dean and the Vice Chancellor should be sent at the same time to the accused faculty member.

Immediate Harm: The Trustees' policy allows termination or suspension without pay prior to a due process hearing in the case of a faculty member charged with egregious misconduct. The AAUP-AAC&U standard is that "Suspension of the faculty member during the proceedings is justified only if immediate harm to the faculty member or others is threatened by the faculty member's continuance."(11) The task force addition to the language of Appendix C.7--"if the alleged conduct causes o[r] threatens irreparable harm or injury"--is a welcome change. We recommend that similar language recognizing an "immediate harm" standard be added at Tenure.I, Appendix B.3, and Appendix C.3.A where there are also provisions for suspension prior to a hearing.

Role of Faculty Affairs Committee: The Faculty Handbook currently guarantees to faculty involved in both adequate cause and misconduct proceedings the option of review by the Faculty Affairs Committee (§3.2-3: 52-56). Furthermore, the Faculty Handbook specifies such mediation as a principal role of the Faculty Affairs Committee, which is charged to "evaluate and make recommendations to the Chancellor regarding faculty grievances that may arise in relation to employment by the University, including but not limited to such matters as work assignments, performance evaluations, salary adjustments, imposition of discipline for misconduct, promotion and/or tenure with regard to procedures, and termination of employment" (§1.6.4.3: 19). The function of the Faculty Affairs Committee as a grievance committee is severely abridged in the Trustees' policy. Appendix C.3.A says, in the Trustees' original language, "Suspension With Pay. After consultation with the President of the Faculty Senate or the Faculty Senate Executive Committee, the Chancellor may suspend the faculty member with pay, or change his or her assignment of duties, pending completion of The University's termination proceedings." And Appendix C.3.B says, in the Trustees' original language, "Suspension Without Pay. After consultation with the President of the University and the President of the Faculty Senate or the Faculty Senate Executive Committee, the Chancellor may suspend the faculty member without pay only for the following types of alleged misconduct...." The task force has amended the Trustees' language to delete reference to the Executive Committee, and without substituting any other mechanism for review by a Senate committee. In view of the charge in the Faculty Handbook to the Faculty Affairs Committee ("evaluate and make recommendations" concerning "imposition of discipline for misconduct"), language should be added to Appendix C to provide for review of misconduct charges by the Faculty Affairs Committee.

Composition of Ad Hoc Committee: The Trustees' policy (Appendix C.5) gives the Chancellor sole authority to decide the composition of the "ad hoc hearing committee" which will conduct an informal non-TUAPA misconduct hearing. We note that in the case of an adequate cause hearing the composition of the committee is described and the faculty member has the opportunity to "challenge the appointment of a tribunal member on the ground of bias or conflict of interest" (Appendix B.6.A). We recommend that similar language be inserted at Appendix C.5 to control the composition of the committee conducting a misconduct hearing.

The matters discussed in this section are specific provisions of the Trustees' June 1998 policy and as such may not be subject to adjustment in unit bylaws or by administrative procedure. The Faculty Affairs Committee believes, however, that these provisions raise serious questions about sound institutional practice--as reflected, for instance, in policy documents of the American Association of University Professors(12)--and so calls attention to the difficulties without recommending remedies.

Definition of Tenure: The Trustees' policy defines tenure as "a principle that entitles a faculty member to continuation of his or her annual appointment until relinquishment or forfeiture of tenure or until termination of tenure...." The use of the expression "annual appointment" suggests an affirmative action each year to renew the employment of a faculty member, and as such is inconsistent with the idea of tenure as "continuing employment." Furthermore, the expression "annual appointment" does not reflect employment practices at UTK.

Competency Standard: The Faculty Handbook defines "adequate cause" as including "incompetence (failure to maintain the level of professional competence and ability demonstrated by other faculty members in comparable positions within the academic unit)" (§2.14.3.4/[a]: 46). The Trustees' language, as amended by the task force (through addition of "in assigned roles") is different: adequate cause includes "failure to demonstrate professional competence in assigned roles in teaching, research, or service" (Tenure.H.1.c.[i]; cf. Appendix B.6.F). The change in language implies an affirmative duty on the part of the faculty member to prove competence which is inconsistent with the presumption of excellence which follows the award of tenure. We call attention to AAUP's recent policy statement on post-tenure review: "The heightened protection of the tenured faculty is not a privilege, but a responsibility earned by the demonstration of professional competence in an extended probationary period, leading to a tenured position with its rebuttable presumption of professional excellence. It chills academic freedom when faculty members are subjected to revolving contracts or recurrent challenge after they have demonstrated their professional competence."(13)

Dismissal: We note two issues related to dismissal procedures, especially the "expedited" procedures described in Appendix C of the Trustees' policy. First, the Trustees' policy provides for expedited termination or suspension procedures without pay. The AAUP-AAC&U standard is that "Unless legal considerations forbid, any such suspension should be with pay,"(14) and that except in cases of moral turpitude a faculty member who is dismissed should receive severance pay equal to one year's salary.(15) And second, the Trustees' policy in Appendix B.8 provides that a decision by the Trustees contrary to the recommendation of the faculty review committee in a case involving termination for adequate cause is final, and there is no further opportunity for faculty consideration; the standard of AAUP-AAC&U is that "the decision of the hearing committee should either be sustained [by the governing body] or the proceeding be returned to the committee with objections specified."(16)

Post-Tenure Review: Finally, as the campus embarks on implementation of the Trustees' changes in our tenure policy, we call attention to the fact that there never was a general, public discussion of the need for change. That is surprising in view of the fact that the Faculty Handbook, which states the policies and procedures of the Board of Trustees, acknowledges the central role of the faculty in University governance generally and in decisions about tenure policies in particular. The Trustees ask that the Faculty Senate "consider, advise, and recommend to the administration policies about ... 1. criteria for faculty appointment, dismissal, promotion, tenure, and retirement ..." (§1.6: 14). The Trustees ask that the Faculty Affairs Committee be "concerned with the development of criteria and procedures for faculty appointment, promotion, the granting of tenure, and discharge for cause" (§1.6.4.3: 19). And the Trustees state that faculty generally participate in governance of academic units by providing advice about promotion, tenure, assessment of performance, and adjudication of grievances: "The voice of the faculty in these areas is indispensable. Its advice cannot be lightly given or peripherally received" (§1.7: 22). We welcome this opportunity to participate in the development of implementation procedures for the Trustees' policy. But we regret that Senators did not have the opportunity when the policy was being developed to make such points as these in public debate: that UTK faculty are subject to intense evaluation already in various forms, that UTK faculty work hard and perform well, that existing procedures for review of faculty performance could accomplish whatever results the Trustees seek if there were the will to follow them, and that the arguments for post-tenure review advanced in places where there has been public debate--arguments such as that the University should be operated as a business, that tenure protects radical and marginally qualified advocates of postmodernism and multiculturalism, and that there are significant quantities of deadwood in the grove of academe--are without merit.

Notes