The following letter was received from John Bonine at 10:59 on 10 February 1999. It deals with post tenure review
Dear Univ. Senate Members,
The Senate proposal on Post-Tenure Review will come before you today. This proposal was prepared after long meetings all Fall Quarter by the Senate committee appointed for this purpose, of which I am one of the members.
There has been some talk about how the Senate Committee proposal compares to the proposal drafted by the Administration last Spring and reviewed by the Faculty Advisory Council to the President. This message provides some comparisons, for your consideration.
This memo is my own personal view, as a single member of the Senate Committee. I do not believe that it varies much from those of others, but I decided in any event to write my views to you about the "details" of post-tenure review. As it has been said, "the Devil is in the details."
In a nutshell, here are the issues as I see them:
An accreditation committee in 1997 said the U should have "some kind of substantive review" every 3 years instead of 5. The only clear direction from the accreditation committee regarded frequency of reviews, and that there be "some kind of substantive review" -- both of which our faculty committee's proposal addressed. In addition the accreditation committee commented on "unevenness" in implementation. The Ad Hoc Senate Committee's proposal that is in front of the Senate directly addresses unevenness by the provision of new, specific procedures so that all units in the University will start doing PTRs.
What the accreditation report did NOT specify were (a) the details of how to conduct post-tenure reviews, (b) linking them to reduction in pay or dismissal, (3) having them some of done by administrators and department heads instead of a faculty committee, or (4) empowering administrators and heads to "establish expectations" "for" individual faculty members and then use them to "guide" the professor. All of those items were in last Spring's University proposals, nonetheless. While they are subject for debate, it needs to be clear that no outside agency has told us we must have them, or any particular form of them.
Our proposal is to alternate a very "light" review and a detailed review, every 3 years, to meet the request of the accrediting agency (despite misgivings about whether it was appropriate), but to spend faculty time mostly on the detailed review. In jargon, our light reviews are a kind of "triggered" review, in which faculty members produce their own, quick self-study memo and the faculty peer committee just receives and files them unless it chooses to "trigger" a more intense review.
In one sense, the proposal brought to the Senate last Spring was similar, but not as "light" as ours. Read on for why.
After we had finished our work, new statewide regulations and an Internal Management Directive were proposed by the Provosts of the various institutions in the State of Oregon and by the State Board staff, governing post-tenure review. Upon reviewing them, we in our committee concluded that we had to make one modification in our recommended policy for post-tenure review, involving a linkage to salary increases. But beyond that, the OUS rule changes cannot be said to require changes in our proposal.
The OUS rule changes do not, for example, (1) specify the details of how to conduct post-tenure reviews, (b) require linking them to reduction in pay or dismissal, (3) require that some PTRs be done by administrators and department heads instead of a faculty committee, or (4) order that administrators and heads of departments be the ones to "establish expectations" "for" individual faculty members and then use them to "guide" the professor. All of these elements, however, were in last Spring's University proposals, which seem to be back on the table now.
The proposal of last Spring proposed that the light reviews be done by administrators or department heads and that they could establish "expectations" for individual faculty members to meet. Our Committee, however, declined to give up faculty governance to that extent, instead keeping review in a peer committee, but making the light reviews even lighter, to keep from having an excessive workload on the peer committee. (In our proposal, administrators would participate in the peer committee to the extent that they chose to do so, such as themselves reading files or asking for a triggered more intensive review.)
One important reason for our wanting to keep post-tenure review very much a peer review is related to the next issue. Read on.
Last Spring's proposal provided -- for the first time in the 22 years that post-tenure review has existed at the University -- a linkage between post-tenure review and termination of tenure. This had never existed before and it is not clear why it was proposed to be added. If adopted, it will state that a second adverse PTR can lead in "extreme" cases to termination. Since one of the PTRs in last Spring's proposal would NOT be done by a peer committee, and reviews would be about twice as often as in the past under the 5-year cycle, this linkage to possible termination could have even more significant consequences for academic freedom and tenure. But I believe it would be wrong in any case.
Under the policy in place since 1977 the processes were "totally different," and under the Senate proposal produced by our committee last fall they would remain totally separate, what was proposed last Spring was NOT a totally different process. That proposal added the "other actions" phrases onto the policy that had been in place since 1977:
"However, If an additional post tenure review finds the faculty member unwilling or unable to perform at acceptable levels, altered career plan counseling or early retirement opportunities may be provided by the University or OTHER ACTIONS resulting in REDUCTION IN PAY, or in extreme cases, TERMINATION MAY OCCUR." [CAPITALS added for emphasis]
In this excerpt from last Spring's proposal we see that:
In the policy in place since 1977, a second post-tenure review does have a role of standing as a prerequisite to initiation of a for-cause proceeding; that has perhaps been beneficial. But in last Spring's proposal, while those words remained, new words were added as "trigger" words: "
If an additional post-tenure review finds the faculty member unwilling or unable to perform at acceptable levels . . . reduction in pay, or in extreme cases, termination may occur."
The AAUP stated as long ago as 1983, "The Association cautions particularly against allowing any general system of evaluation to be used as grounds for dismissal or other disciplinary sanctions." I believe that the linkage in last Spring's proposal and the other new provisions that were proposed COULD be used as "grounds for dismissal or other disciplinary sanctions."
Adding new words to current University policy to state that "termination may occur" as an outcome of a second post-tenure review, as the Spring 1998 proposal did, seems to have no purpose UNLESS the review (not conducted under due-process procedures) were to be used at least in part as one of the "grounds" for dismissal. As long as that linkage is NOT present, and administrators and department heads are not the ones to establish expectations "for" a professor, the two processes are quite separate. When the linkage and direction are inserted, they no longer are.
As the AAUP has stated just a few months ago:
When post-tenure review substitutes review procedures for adversarial hearing procedures, or diverse reappointment standards for dismissal standards, it creates conditions in which a host of plausible grounds for dismissal may cloak a violation of academic freedom.
http://www.aaup.org/postten.htm
Our Committee proposal has no such linkage between PTR and dismissal.
One important practical effect of linking PTR to possible termination proceedings is to lighten the burden of proof on a University Administration to terminate someone's tenure, or even to shift it in practical effect to the professor. Note that I am talking about the PRACTICAL effect, not anything in last Spring's proposal that would state outright that the burden on the University would be lightened or even shifted.
Academic freedom is protected not by words promising its protection, but by the procedures required before dismissal. That is the whole reason for tenure. Those procedures require what is known as "academic due process," including requirements of evidence, right to counsel, cross-examination, and so on. But what is "evidence"? If conclusory PTRs can introduced in a dismissal proceeding -- indeed, can be the "official" triggering event for a dismissal proceeding according to the rules -- their conclusions may take the place, in the minds of adjudicators, of what otherwise would have to be proved through evidence.
The AAUP has written about this eloquently, pointing out exactly this danger to academic freedom and tenure. In the words of the AAUP report on PTR:
[U]nsatisfactory 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.
http://www.aaup.org/postten.htm
This is even more true where one of the reports leading to termination is not even prepared by peers, but by an administrative official. But it is true whenever there is PTR, and all the more where there is a linkage between PTR and termination. Our Committee's proposal does not have this kind of linkage.
This comes from the AAUP's June 1998 statement on post-tenure review, "approved by the Association's Committee A on Academic Freedom and Tenure, adopted by the Association's Council in June 1998, and endorsed by the Eighty-fourth Annual Meeting." The statement is saying that even a post-tenure review with no explicit linkage may have this effect of shifting the burden of proof. The proposal pending before the Senate from our Ad Hoc Senate Committee tries to avoid this shift, by not providing for administrators and department heads to establish expectations for faculty members, which might then be used as a yardstick for measuring whether a professor's performance was "acceptable."
These concerns about de facto linkage are not simply my views. They are the views of law professors, who get paid to think of worst-case scenarios, not only best-case scenarios.
It is significant, I think, that no fewer than seven law professors sit on the AAUP's Committee A on Academic Freedom and Tenure and were presumably involved in Committee A's decision to express those sentiments. (Others on Committee A come from the disciplines of History, Sociology, Art History, Political Science, English, and Biochemistry). The law professors include Gerald Torres and David Rabban of the University of Texas, as well as other experts whom many of us know as colleagues.
Our Committee proposal requires that there be classroom visits to assess the teaching of faculty, rather than leaving all this to student evaluations. I advocated in the committee a schedule of approximately 3 such visits during a 6-year cycle, but the final proposal has even less specificity:
Peer classroom visits will ensure that a faculty member is observed in a variety of settings, a condition that may be satisfied by a program of regular visits in various years.
Even one visit in alternating years would require only visiting one other professor's class in alternative years if the task were spread around. But the proposal leaves flexibility to each department and school, in any event. The fact is that there needs to be SOME kind of review of teaching. If it is not done by faculty colleagues, it will be based entirely on student evaluations or hearsay. My personal view is that faculty need to have a role here as well.
Our Committee concluded that, just as revocation of tenure and consequent termination (or other "for cause" sanctions) should remain wholly separate from PTR in order to protect the integrity of the academic due process protections of academic freedom, it would be difficult to make PTR do two things well: discipline faculty and support and encourage them toward excellence. Consequently, we turned PTR into "Faculty Development Review" (FDR) and oriented it toward working WITH the faculty member being reviewed, rather than primarily judging her.
One aspect of our developmental philosophy is that professors will meet with the peer committee at the beginning of the semester in which they are being reviewed, rather than just having the PTR/FDR happen "to" them. Another aspect is that, in the end, if the professor and the committee disagree with one another (and/or the administration does), there should be an attempt at mediation to resolve differences. One can view this as "soft," we understand. But one can equally view it as respecting the integrity and expertise of faculty colleagues who have varying approaches to teaching and research, and who have the right to varying agendas, about which they and colleagues can honestly disagree.
In the end, an administrator or peer committee can, of course, say that the mediation has failed, the professor is incompetent, and proceedings should be implemented -- as under our current system can happen. This is the proper way to deal with incompetence -- not by coopting a supportive process involving one's peers into doing that which protective procedures make difficult (though possible) in the for-cause process.
An additional issue is money. The State Board is going to require that PTR be linked to salary improvements. To put it another way, everyone is going to have to compete for future salary money on the basis of merit. This came to our attention after we had finished our proposal in the fall, and we have created a paragraph to add to it in the amendment process in the Senate.
I agree that there are some similarities between our Committee's work and the proposal of last Spring. But I see huge differences between the two approaches. The Spring 1998 proposal provided, in addition to the differences set forth above (linkage to reduction in pay and termination proceedings, triggered by a rating of less than "acceptable" performance) SIGNIFICANT changes in post-tenure review at the University of Oregon.
At the risk of being repetitive in some respects, I will summarize some of the problems with last Spring's proposal here:
The Spring 1998 proposal had these important additional deficiencies, which we sought to correct in our Ad Hoc Senate Committee proposal:
That is PTR/FDR in a nutshell. Perhaps this memo to you has served to present the issues in a simplified, straightforward way. Of course, it also presents them from the perspective of one who is concerned about tenure as the bulwark of academic freedom. I believe with all my heart that we DO care about our teaching, DO care about our students, DO care about the quality of our research and service, and can be trusted. That is the essence of a university, in my view.
Some may say that for me to write about this with such detail and passion is polarizing for the discussion. I do not mean it to be so. But I do think that laying out with clarity the issues for discussion with faculty colleagues is the best way to get to a resolution.
After all, we have been told that the University is on a tight time-line to get revisions in place in the next six weeks (end of winter quarter). There will be little time for the faculty to become informed unless they do so now. This is why I have written about this.
John