Faculty Development Review &

Revisions to OAR and IMD

3 February 1999

To: Ad Hoc Senate Committee on Post-Tenure Review

Fr: John E. Bonine, Professor of Law

Re:Compliance of Proposed Faculty Development Review with State's Proposed Revisions to OAR and IMD

Dear Committee Colleagues,

I have reviewed our proposed Faculty Development Review (pending before the University of Oregon Senate) for compliance with state policy on post-tenure reviews. In particular, I have compared it to the proposed revisions to Oregon Administrative Rules (OARs) and Internal Management Directives (IMDs) of the Oregon University System (OUS).

My conclusion is that our Review fully complies, with one or two minor exceptions. My further conclusion, based on the judgment of our faculty committee, is that only a policy designed like ours will achieve the goals of the proposed IMD and OAR.

In other words, not only does our Review comply, but most potential changes in it would be likely to create a system that would not comply with the proposed IMD and OAR.

I. Preliminary Perspectives

A. Changes from Previous OAR

As a preliminary matter, it is important to note that the proposed IMD makes few, if any, policy changes in the existing requirements (stated in OAR 580-021-0140) other than (a) making a State Board commitment to academic freedom, tenure, and a supportive environment a centerpiece of post-tenure review policy (which was not explicitly stated before), and (b) modifications in the previously required link to the faculty reward system, now stressing "salary-adjustment decisions." Other changes are minor.

Similarly, the main changes in the OAR (apart from relocating material into the IMD) are (a) a new emphasis on "excellence," and (b) a required linkage of remuneration to faculty performance.

B. The Four Positive Values

1.Academic Freedom, Tenure, Supportive Environment, and Excellence

The IMD, compared to the old OAR, adds new language about academic freedom, tenure, a supportive environment, and excellence. The significance of these additions cannot be overemphasized.

In my view, careful attention to them makes it practically impossible to adopt a post tenure review system in the University that is excessively managerial, devoted to "scoring" various faculty members against one another, or that makes a revocation of tenure easier.

2.Shifting the Grounds for Dismissal Would Violate the Academic Freedom and Tenure Values

The vast importance of the IMD's commitment to academic freedom and tenure makes it improper to move toward dismissal based on any standard less than incompetence or gross inefficiency, yet some proposals would both substitute lesser grounds and use conclusions rather than proof as the basis for dismissal.

Let me take one example: Proposals to grade faculty performance as whether or not it is "acceptable" or "unacceptable" and to use that grading in a termination proceeding (by linking post-tenure reviews to dismissal) would violate academic freedom, the current tenure regulations of the State, and the agreed principles on academic freedom and tenure of the American Association of University Professors (AAUP). Yet that is exactly what the proposal last spring from the Provost's Office would have done.

The University's Policy Statement on Post-Tenure Review until now has said that, after two adverse reviews extending over 10 years, a conclusion that a faculty member is "unwilling or unable to perform at acceptable levels" could lead the University to offer "altered career plan counseling or early retirement opportunities." But the proposal of last spring asked us to agree that performing at "unacceptable levels" could lead to termination.

This would have violated state regulations on revocation of tenure, which provide that "incompetence; gross inefficiency" are grounds for losing tenure -- not a lesser test, based on whether a professor's teaching or research is "acceptable" to someone. Furthermore, the state regulations require "evidence" that performance is incompetent or grossly inefficient, and that evidence must be presented in a due process hearing, subject to challenge and rebuttal, as evidence. The proposal of last spring would permit conclusions of unacceptable performance to be used for termination and, since a conclusion is a value judgment instead of fact, there would be no effective way to enforce the requirement that a burden of proof be sustained before dismissal.

The American Association of University Professors (AAUP) has noted the specific dangers of letting the results of post-tenure reviews be linked to a possible action of termination of a professor's tenure:

[M]ixed or unfavorable reviews . . . establish a record and may require challenge or appeal, even if there is no immediate threat of a sanction, in order to avoid prejudicing one's position in future reviews. . . . If an accumulation of critical or negative reviews results in a decision to pursue a major sanction like suspension or dismissal, the very fact that those reviews are on the record may significantly lessen the burden of proof on the institution to show adequate cause for levying the sanction. To put it slightly differently, unsatisfactory ratings based on a non-adjudicative peer procedure in which the administration has carried no prior burden of proof may lead to a formal hearing in which the presentation of the same unproven unsatisfactory ratings shifts the burden of proof to the tenured faculty member.

Such a linkage would violate the academic freedom protections of the IMD.

C.Review by Administrators and Their Setting of "Expectations" for Individual Professors Would Violate the Requirement for a Supportive Environment

A second example of how proposals made last spring would violate the State Board's proposed IMD involves the question of post-tenure reviews by administrators and department heads. Such review would foster a "managerial culture" at the University of Oregon and prevent the creation of a supportive environment for faculty members.

In the proposal forwarded to the University Senate last spring, administrative officers who in the past could summarize "past duties and responsibilities" would be formally empowered to establish "expectations in the areas of teaching, research, and service." Whereas one of the unique aspects of American education has been that it searches for self-motivated faculty members who do not need managers over them to stimulate them to pursue excellence in teaching, research, and service, the proposal of last spring would instead treat professors as those for whom administrators may need to establish "expectations."

The proposal of last spring provided that post-tenure reviews would measure how faculty members are meeting the "needs and expectations of the department and university," "guide the faculty member," and empower administrators to "discuss corrective action and establish expectations for future activities." This would neither create a supportive environment, nor promote "excellence" in the faculty.

D.Recurrent Challenge Diminishes Academic Freedom, Tenure, and Excellence

Some may argue that having recurrent, "rigorous internal review" is a method for protecting tenure and advancing values of excellence in the University. In this view, the more review from "above," the more motivated professors will be to achieve excellence. What we know about the motivation of excellent teachers contradicts this (managerial) view, however.

In this view, furthermore, rigorous internal review can be held up to say to the public at large that they should not equate tenure with inadequate performance, because such performance will be rooted out. It is possible, however, to assure the public that this (in the form of incompetence or gross inefficiency) will be rooted out through the existing processes that provide full procedural protections to faculty members. To lower the bar for retention will both erode faculty excellence and diminish academic freedom.

The AAUP has pointed out that it "chills academic freedom when faculty members are subjected to . . . recurrent challenge after they have demonstrated their professional competence." The AAUP statement contends:

Innovative research may be dismissed as unproven, demanding teaching as discouraging, and independence of mind as a lack of collegiality.

To argue that reviews after tenure should have the same intensity, standards and rigor of those prior to tenure, or that post-tenure reviews should have "as much significance as possible," is a simplistic view of academe. If not qualified, this diminishes the protections of tenure. It therefore also diminishes academic freedom. And that which diminishes academic freedom will also diminish excellence.

This point was made also by the AAUP in its statement on post-tenure review:

The lengthy demonstration of competence that precedes the award of tenure is required precisely so that faculty are not recurrently at risk and are afforded the professional autonomy and integrity essential to academic quality.

Professional autonomy and integrity are indeed essential to academic quality. And the proposed IMD, by calling for "excellence," necessarily demands that we not erode professional autonomy and integrity by having faculty members excessively managed through having to prove every six years their justification to remain tenured professors. If professors lack integrity, competence, or are grossly inefficient, they should have their tenure removed by the processes set up for that purpose. If they simply need help and support to become better, this can be done best through a faculty development review of the kind proposed by the Ad Hoc Committee.

E. Conclusions About the Four Values

In conclusion, major parts of the proposal last spring of the Faculty Advisory Committee, would cause risks to academic freedom, to tenure, to a supportive University environment, and to excellence. As a consequence, that would violate the IMD and OAR changes. It is clear from the inclusion of each of these four values that we must avoid doing anything in post-tenure review that threatens the four values. Otherwise, we will be failing to comply with the strong commitments in the revised OAR and IMD.

To put it another way: if the commitment to academic freedom, tenure, and excellence is a real one and not mere words, which we must assume it is, then creation of a post-tenure review system that -- in either words of actual effect -- would weaken the tenure protections already in existence would contradict the proposed new OAR and IMD. Since there is no proposal on the table to modify that existing regulations on dismissal and other sanctions for cause, we must avoid such weakening.

II. The IMD's Requirements

In this memorandum, I have matched our Faculty Development Review proposal to the subsections of the proposed IMD. Where the wording differs from the current OAR in any important respect, the difference is noted in my discussion.

After stating its commitments to tenure, academic freedom, and a supportive environment, the IMD requires that each institution develop post-tenure review "guidelines," which must include seven requirements. The current OAR contains six of these seven requirements, and calls for a "plan" as compared to the new call for "guidelines."

A. Objectives

Each institution's guidelines must first include a "statement of post-tenure review objectives," as did the previous OAR. The preamble to our UO proposed Faculty Development Review complies with this continuing requirement.

*The first objective, stated in our preamble, is to help each of us, as professors, "more effectively discharge her or his individual responsibilities toward students, profession, and society."

Those responsibilities are "individual" because of the special trust that has been placed in us, after a rigorous recruitment and probationary period in which a large number of prospective faculty members simply do not "make the cut." Education is a sacred and individual trust, bearing some of the same individual ethical duties to students, the profession, and society that a lawyer bears toward her clients.

This first objective stated in the preamble of our proposed Review does an excellent job of carrying out the principle stated at the beginning of the proposed IMD "that the quality of higher education is inextricably tied to the quality of faculty." The ability of the University of Oregon to attract and keep quality faculty, as we know, is directly related to the degree to which we both nourish a climate of freedom in the University and take collective responsibility to help individual faculty members carry out their "individual responsibilities" toward students, profession, and society (as we state).

*The second objective in our preamble is to "guarantee[] a healthy measure of freedom" to faculty members "in their professional lives" as a "precondition" to excellence in the professorate and the "precondition" to the education of "continuing generations of free citizens, in a free society."

One of the purposes of our new policy of Faculty Development Review is definitely and strongly to "guarantee" that healthy measure of "freedom" because we cannot have excellence and the education of free citizens unless professors are able to do the work of professors. One could have educational "production" under a different system than the one under which universities in America operate, consisting of externally imposed and managed production-type criteria, but you cannot have "excellence" and true "education" for students to take their place in a "free society."

Fortunately, the proposed IMD recognizes exactly that point, continuing in its first sentence to declare in ringing fashion:

the Board reaffirms its commitment to tenure, academic freedom, and maintaining an environment that supports sustained performance in teaching, research, and service.

Just as the Board reaffirms its "commitment" to tenure and academic freedom (as well as a supportive environment), so our own preamble asserts the objective of guaranteeing this freedom.

*The third purpose of our Faculty Development Review is to produce specific benefits for society, of which the benefits to professors are only instrumental in that larger goal. In the words of the preamble of our policy, "Academic freedom is guaranteed not primarily to benefit the professors, therefore, but to ensure benefits to society as a whole."

Our Faculty Development Review proposal intends to support the work of professors to achieve excellence, and does so in the way that it does, so that professors will produce specific benefits for society of truly excellent work -- not the spurious benefits of a top-down system that produces only what a segment of society wants to hear.

*A fourth purpose of the way we have crafted this policy is to help support, and not to undercut, "a conditional grant of lifetime tenure." We made it clear that "This guarantee is central to academic freedom and the societal benefits that it generates."

Just as the IMD reaffirms the commitment of the State Board in so many words to tenure, so the Faculty Development Review is intended to ensure that those who have tenure will not have the meaning of their tenure eroded by giving the form, but not the substance, or the kind of tenure that makes quality education work. Our proposal preserves the substance of tenure. It also ensures (as discussed next) that this tenure will result in excellence, not inadequate performance.

*Finally, the last purpose for drafting our policy is to carry out our "collective responsibility to help individual colleagues achieve excellence."

This last objective of the Faculty Development Review is in many ways the central one. Unlike some procedures in the
past, the collective and collegial nature of the new policy is clear: "The purpose of this procedure is to promote a high level of dialogue between individual faculty members, their colleagues, and heads of administrative units, so that each faculty member can draw upon the advice and resources of others in her or his pursuit of professional excellence."

In other words, the purpose is not for professors to play a game of popularity and competition, but to work together as a faculty, for the common goal as well as individual goal of "professional excellence." We know in our own teaching experiences that we do not whip students into excellence; neither do we even bribe them into excellence with the promise of grades. Cultivating excellence is a much more subtle, personal, and creative task. So, too, is the cultivation of excellence among faculty members. Our proposal seeks to promote the kind of atmosphere in which we can work together in pursuit of discharging that collective responsibility.

In summary, we have been clear and forthright in the objectives of our policy. This complies with the proposed IMD.

B. Criteria Used in Evaluations

The proposed IMD requires that each set of institutional guidelines include "a statement of criteria to be used in evaluations." Our proposed Faculty Development Review includes a statement of criteria to be used.

Our statement of criteria is forthrightly set forth. The criteria are "professional excellence" in teaching, "professional excellence" in research, and "professional excellence" in service.

Last spring's FAC/Provost's proposal contained these criteria, using more words to say the same thing:

1.Maintenance of high quality of teaching at all levels.

2. Continuing professional growth, scholarly activities, creative and artistic achievement.

3.Exercise of leadership in academic and administrative service.

4.Service and activities on behalf of the larger community.

It strikes me that to say that this list of four, with numbers and more words, is superior to our demand for "professional excellence" is a distinction without a difference. I cannot frankly think of any reason to resist saying the same thing in more words, as last spring's proposal did, but neither can I think of any reason to insist upon a more wordy formulation.

Whether more words are used, or fewer, the specific application of such criteria must obviously be the task of the individual and diverse academic units on this campus. A lawyer can no more say what is excellence in biology than can an economist set out more specific criteria for excellence in poetry. That is a matter for the individual unit. The criteria are university-wide, but the interpretation and implementation must be local.

In the end, of course, excellence will be guaranteed by the procedures used, not by a form of words.

C. Data Used in Evaluations

The proposed IMD requires that each set of institutional guidelines include "the nature and kinds of data that will be accumulated, and the methods of data collection." Our proposal complies with this requirement. Only our sixth-year review needs to be presented, for purposes of intensive post-tenure review, but I summarize here also the less-intensive third-year review.

1. Third-Year Review

Data to be collected, and methods, are as follows:

a.Review of teaching, research, service (collected by faculty member).
b.If above review is not satisfactory to peer committee, Dean, department head, or professor, the committee or others provide "constructive feedback," consisting of the viewpoints of those other than the professor ("collected" by those holding such viewpoints).

2. Sixth-Year Review

Data to be collected, and methods, are as follows:

a.Review of teaching, research, service,consisting of "an extensive and self reflective analysis of the course of the professor's career, focusing specifically on the previous six years" (collected by faculty member).
b."Updated Curriculum Vitae" (C.v. prepared by professor).
c."Narrative cover letter" (prepared by professor).
dInformation on teaching performance, consisting of peer review (collected from "regular classroom visits" or other observation by peers in a "variety of settings").
e.Information on "accomplishments, hopes, plans, and resources needed" (collected, or presented, by faculty member).
f."A plan that is acceptable to all" (collected through the mediation process, if needed).

D.Designation Of Persons Making Evaluations

Persons making the evaluations include first the professor, then the peer committee, and with the committee administrators and department heads.

Although one review could not find the "participation of the administrative head of the unit," it is there. The policy we have drafted specifically states:

"Administrators and department heads under this policy are to engage in faculty developmental review in cooperation with the faculty peer committees."

E. Designation Of The Frequency And Regularity Of Evaluations

The proposed Faculty Development Review provides for intensive evaluations every six years, a less-intensive review every three years (to catch apparent problems and to allow attention to be focused on any problems), or even less-intensive review more often if such a process is in place or desired by the unit.

We know that to claim that we were reviewing one-third of our colleagues every year would simply guarantee that it be done superficially, erratically, and in some cases unfairly. We want to do it well, and to do that we must do it with more intensity but less frequency than would be the case if we were willing for it to be done in a more superficial manner.

F.Salary-Adjustment Decisions to Reflect The Results Of Performance Evaluations

The Ad Hoc Committee, meeting on Friday, January 29, 1999, decided to recommend additional language to meet this new requirement. The language is as follows:

Whether regular reviews in any particular unit of the University consist of regular reviews for salary purposes, of merit reviews, or of a newly created third-year review, the documents from such reviews must be used by the unit as a factor in deciding on remuneration. Each unit shall include in its memorandum submitted to the Provost's Office and the Senate President a description of how the reviews will be used in the process for deciding on remuneration.

G. Formative Opportunities

The all-important sixth-year reviews are the ones that must comply with the IMD, and in those we have provided for (or, rather, requested) "Faculty Resource Support." Obviously (if regrettably), faculty members use their own salaries as a source of support for their work, unlike most of the business world. In addition, the Academic Support Allowances are explicitly available for this purpose. But in addition, our proposal calls for a new category, which should be in addition to the minimal resources currently available. In the words of our proposal:

So, for example, resources could be made available to support the preparation of new classes, the acquisition of technological capabilities, the pursuit of new research initiatives, or a number of other goals that might be outlined in the faculty member's developmental review.

The draft cannot describe every opportunity available. It sets up a process for obtaining more support for professional development -- at the third-year point as well as the sixth-year point.

H. Incompetent Faculty

As does the existing OAR, the proposed IMD requires "a description of the institutional plan to deal firmly but humanely with situations in which a faculty member's competence or vitality have diminished to such an extent that formative opportunities are unable to sufficiently stimulate or assist the faculty member's return to a fully effective state." The IMD specifically indicates that personnel actions for cause are to follow the existing OARs on the subject.

1.The Ad Hoc Committee's Proposal

Our proposal has a description of a plan. The "institutional plan" for dealing firmly with a faculty member who is not "fully effective" is provided in OAR sections 580 21-0310 through 580-021-0470 and 580-022-0045. involving sanctions for cause. We reference it as follows:

The peer committee review process is intended to be cooperative and beneficial, not punitive. This process of developmental review is not a disciplinary, sanctioning, or termination process. Separate regulations govern such purposes, and are summarized in Appendix C."

"Cause" includes, as our Appendix C notes, "evidence of incompetence; gross inefficiency; default of academic integrity in teaching, research or scholarship; intentional or habitual neglect of duty and failure to perform adequately for medical reasons."

It is clear that our plan does not provide an easier way to take action against a professor with tenure than the ones that exist, and which provide "academic due process" to protect academic freedom. Nor do I believe that the State Board proposal seeks to chance the standards for dismissing a faculty member. Surely, if that were the intention, the drafters of the IMD would be straightforward in saying so.

The IMD cannot mean that diminishment of competence or vitality (the IMD's terms) should be handled by some other sort of sanctions that are outside the OAR protections for tenure and academic freedom. We know that the IMD cannot have this intention because the IMD reconfirms the commitment of the State Board to academic freedom and tenure. Academic freedom means that a faculty member's tenure will not be taken away without full due-process protections.

2.Alternatives that Would Link Post-Tenure Review to Dismissal or Change Dismissal Standards

The American Association of University Professors (AAUP) has warned several months ago about the dangers contained in policies such as the draft Policy Statement presented to the Faculty Senate last spring. In June 1998 the AAUP reiterated its existing policy on post-tenure review, adopted by the Council of the Association in November 1983, which had warned:

The Association cautions particularly against allowing any general system of evaluation to be used as grounds for dismissal or other disciplinary sanctions. The imposition of such sanctions is governed by other established procedures . . . that provide the necessary safeguards of academic due process.

The AAUP Committee A on Academic Freedom and Tenure repeated this position in its report that was adopted by the AAUP in 1998:

Post-tenure review should not be undertaken for the purpose of dismissal. Other formal disciplinary procedures exist for that purpose.

If a post-tenure review policy were to set a standard for taking action against a faculty member were something less than incompetence, gross inefficiency, default of integrity, or intentional or habitual neglect of duty, then it would be undoing tenure "through the back door." The opening paragraph of the IMD prohibits the University of Oregon from weakening tenure in that way. The IMD requires the full protection of tenure, not a partial protection. It requires the full protection of academic freedom, not a partial protection.

The risk that world-class faculty members considering whether to join the University of Oregon may simply not come, if academic freedom and the protections of tenure are to be diminished, is not a risk that the IMD allows the University of Oregon to run. Thus we cannot, and our proposal does not, allow faculty members to be dismissed on grounds less rigorous than, and with procedures less protective then, those in the for-cause dismissal regulations. Other proposals that might do so would violate the IMD, because they would weaken tenure and academic freedom (and, as a consequence, would weaken excellence as well).

III. Conclusions

It is my conclusion that the Faculty Development Review proposed by the Ad Hoc Committee complies with the requirements expected to be enacted by the State Board.

If our proposal does not comply, then a serious threat to academic freedom and tenure at the University of Oregon exists and national authorities should be consulted about the matter. --------------BC5B98B5847DC83999915F9C--