DePaul University Provost Helmut Epp Tries to Defuse Growing Protest Against Tenure Processes.

DePaul University fired Dr Norman Finkelstein because of external forces that objected to his scholarship. He was clearly denied tenure for ideological reasons unrelated to his fitness as an academic seeking tenure and promotion. Dr Mehrene Larudee was also denied tenure for similar reasons although more subtly applied in the great DePaul purge of 2007. DePaul University has a unique system of tenure evaluation. In particular its Star Chamber, the University Board on Promotion and Tenure, is the university-wide tenure committee. Yet it does not report its findings to the applicant for tenure or promotion. It merely forwards them to the president, Rev. Dennis H. Holtschneider, C.M. It is the president’s prerogative to share or not the report with the candidate. This alone is an egregious violation of transparency and frankly odious in its lack of fairness and attention to due process.

I agree with Provost Epp that the U.B.P.T. need not rubber stamp lower unit assessment of a candidate: be it a department, programme or school/college. Clearly it has the right to exercise independent judgment but it must be accountable for that judgment. The provost does not even suggest an awareness of this problem and in fact ignores it completely. His basic argument is most problematic: A faculty member at DePaul can only appeal a case on so-called non-substantive grounds: either on academic freedom violations {as if that is not substantive!} or on some inadequate consideration of procedures as defined in the Faculty Handbook. The provost I am sure is aware that charges of discrimination, bias and unfair rendering of a decision on the granting of tenure is fair game in higher education and the courts are increasingly being used as a remedy for arbitrary, and non-transparent processes.

I am also gravely concerned about this statement by the DePaul University provost of the U.B.P.T. process of evaluation:

“This is a substantive review and it can only be done at the university level, where the strength of all of the tenure candidates’ applications are viewed against each other and the university-wide desired range of considerations listed above.”

I concur it is unexceptionable for a review committee to compare and contrast candidates. This could indeed enhance fairness but it should never be the charge of a university committee on tenure and promotion to engage in some type of ranking or comparative exercise. The charge is to apply clearly defined standards and not engage in possible academic “curving” or quotas as they assess a candidate pool. Maybe the provost did not mean to imply such an outcome but this curious statement should be challenged with vigour with a demand for greater clarity by the professorate at the Chicago university.

While I am the newly appointed chair of Committee A on Academic Freedom and Tenure of the Illinois Conference of the A.A.U.P.,  I am expressing my individual assessment of this matter.

MEMORANDUM

To:                    Phil Funk

Faculty Council President

From:                Helmut Epp

Subject:             Promotion and Tenure Appeals

Date:    September 11, 2009

I am writing this memorandum because I am aware that unsuccessful tenure applicants have appealed their tenure decisions on the grounds that the evaluation of the candidate was not in accord with the policies and procedures set out in the Faculty Handbook. I hope that it will provide the faculty Review Boards with additional guidance as they begin their work hearing faculty tenure appeals.

Introduction

The promotion and tenure process at DePaul is controlled by faculty to a degree that has remained unchanged over the past twenty years, and at a level that is unusual in higher education. The University Board on Promotion and Tenure consists of faculty members chosen by Faculty Council, and it is constructed so as to be representative of the university as a whole. As I have observed its work over the past four years, I have been impressed by the seriousness and conscientiousness of the members and by the thoughtful way they discuss each case.

Yet, the past few years have seen faculty letter-writing campaigns in response to some of the Board’s decisions that express a lack of confidence in the judgments of their peers. I am hopeful that the protests of a few will not adversely affect the integrity of the process, as the overwhelming majority of those outcomes are among the most favorable at any university. The promotion and tenure process is not meant to be a measure of a faculty member’s popularity. Rather, it is a neutral, critical evaluation of a faculty member’s scholarship, teaching, and service record. It has been my observation that the Board deliberates carefully before making any decision to grant or deny tenure.

Any faculty Review Board considering a faculty appeal of a negative tenure decision must look to the Faculty Handbook for guidance. I write this memorandum because I am concerned that unsuccessful tenure applicants may, through a selective reading of the Faculty Handbook, have an overly expansive view of the scope of a Review Board’s review of negative tenure decisions. Accordingly, I have

summarized below key aspects of the tenure procedures that, I believe, are often overlooked by faculty members appealing a negative decision. 1 would ask that all Review Board faculty members be made aware of these points before they begin their deliberations.

‘ Previously, on January 15, 2009, Father Holtschneider sent the Faculty Council a memorandum outlining his view on another common argument, that the Faculty Handbook requires notification to a tenure applicant when a lower level recommendation is reversed. I have attached that memorandum for your reference.

Key Provisions of the Faculty Handbook

  1. 1. The Faculty Handbook Limits the Grounds for Appeal.

First and foremost, the Faculty Handbook specifically limits the grounds for appeal of a negative tenure decision to the following two procedural points: (1) that the faculty member’s academic freedom was violated by the dismissal itself; or (2) that the evaluation of the candidate was not in accord with the policies and procedures set out in the Faculty Handbook. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.)

The Faculty Handbook explicitly prohibits a Review Board from revisiting the substantive tenure decision. Review Boards may not inquire into whether the process by which the decision was made applied inappropriate criteria or applied appropriate criteria unfairly or failed to meet reasonable standards of thoroughness. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.) To do so would invite a Review Board to substitute its own decision for that of the Board. The Faculty Handbook does not allow for such a result. Nor should it. A tenure decision is the culmination of careful review and deliberation by faculty at every level of the university. Such a decision should not be overturned on substantive grounds by an ad hoc Review Board authorized only to review the record and ensure that the candidate enjoyed the benefits and protections of the Faculty Handbook processes.

Indeed, the Faculty Handbook appeal process is concerned only with protecting academic freedom and the integrity of the tenure review process. Unless a Review Board is convinced that academic freedom has been violated or that the procedures failed to follow the Faculty Handbook, it must accept and affirm the tenure decision.

2. The Burden of Proof Rests on the Complaining Faculty Member.

The Faculty Handbook also makes it clear that a decision to deny tenure stands unless a faculty member can establish a violation of either of the two points listed above. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.) It is not enough for a complaining faculty member to make an argument that tenure could have been granted or that the faculty member made contributions to the university during his or her probationary period or that his or her scholarship is in some way significant or unique. Rather, the complaining faculty member must establish a violation of academic freedom or a violation of the policies and procedures set out in the Faculty Handbook.

It is important to remember that most tenure candidates come before the Board with – at a minimum – a plausible case for tenure. Every faculty member who completes the probationary period and secures the support of his or her department or school should be proud of these accomplishments. A denial of tenure is not a denial of those accomplishments. Rather, a denial of tenure reflects the university’s measured conclusion that, on balance, the candidate does not have a record of scholarship, teaching, and service sufficient to warrant a lifetime, tenured association with DePaul University. In some cases, reasonable minds may differ as to whether the standard has been met. But it is not up to the Review Boards to assess whether the correct decision was made. The Review Boards can only determine if a complaining faculty member has met the burden of establishing a violation of academic freedom or a violation of the Faculty Handbook.

3. The Faculty Handbook Authorizes the Board to Evaluate Tenure Candidates.

A common argument made on appeal is that the Board substituted its own judgment for that of the sponsoring department or school. This type of argument goes to the very heart of the substantive tenure decision. As described above, the Faculty Handbook does not allow a tenure decision to be reversed on appeal simply because a Review Board may disagree with the decision. Indeed, the argument that the Board improperly substituted its own judgment incorrectly suggests that the Faculty Handbook precludes the Board from conducting a substantive review of the candidates’ applications. The Faculty Handbook language repeatedly makes it clear that this is not the case.

First, the definition and charge of the Board in the Faculty Handbook make it clear that the Board is expected not only to review the lower level reviews and recommendations, but also to apply university-level standards and make independent evaluations of the tenure candidates. The Faculty Handbook specifically states that the Board shall have the following responsibilities:

to apply current university-wide standards and criteria for tenure and promotion;

  1. to review: a) the candidates’ application and supporting materials, b) recommendation from prior levels, and c) the application of departmental and/or college criteria to the candidate;
  2. to recommend action for tenure and/or promotion of the candidate;
    1. to review college/school guidelines and criteria to ensure consistency with stated university expectations as well as reasonable application of these criteria to the evaluation of faculty members.

(Evaluation of Faculty, Procedures and Timetable for Promotion and Tenure, University Board on Faculty Promotion and Tenure.)

The Faculty Handbook explicitly authorizes the Board to apply university-wide standards and criteria for tenure and promotion. This responsibility is separate and apart from the Board’s obligation to review lower level recommendations and the application of lower level criteria. Such an express grant of authority contradicts any argument that the Faculty Handbook limits the Board to reviewing the lower level recommendations.

Second, the Faculty Handbook specifically authorizes each level of review, including the university level, to review critically the lower level decisions. It states that each level “shall consider the method and care of application of the approved standards by the lower level unit(s), including matters of stringency, consistency, and fairness, in addition to any unusual implications the decision may have at the college/school or university level.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) This section makes it clear that subsequent levels may evaluate a candidate’s application both (1) to assess the application of standards by the lower level, and (2) to assess the decision itself at the higher levels.

Moreover, the Faculty Handbook states that the higher level may make their own application of the lower level substantive criteria only when the lower level decisions are deficient in significant respect, such as in matters of stringency, consistency, and fairness. However, the Faculty Handbook places no similar limits on the higher level when assessing the unusual implications the decision may have at the college/school or university level. (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) Nothing in this language precludes higher levels from both reviewing the prior level decision and making a decision based on higher level concerns and considerations. Indeed, this is entirely consistent with the Board’s separate authority to apply university-wide standards and criteria for tenure and promotion.

Third, the Faculty Handbook details the factors the Board should consider when conducting its substantive review of a candidate’s application. It charges the Board with deliberating and considering the desired range of:

  • combinations of teaching and learning; scholarship, research, and/or other creative activities; and service,
  • the variety of roles through which faculty members serve the institution,
  • the differing needs of the individual units,
  • the institutional demands made on faculty, and
  • the varying levels of support available to faculty members in different units for these various activities.

(Evaluation of Faculty, Promotion and Tenure Review, General Criteria.)

The university-level review thus clearly contemplates that the Board assess a candidate’s scholarship, teaching, and service. Although the Faculty Handbook does state that the tenure candidate’s peers are assumed to represent the university’s best expertise in the relevant academic field, it also characterizes this evaluation as “initial” and “basic.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) The Faculty Handbook requires that the university level review go beyond this initial and basic evaluation and “project the probable future performance of the faculty member in these areas as indicated by accomplishments and efforts during the probationary years.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) This is a substantive review and it can only be done at the university level, where the strength of all of the tenure candidates’ applications are viewed against each other and the university-wide desired range of considerations listed above.

Simply put, the frequently repeated suggestion that the Board may not overturn lower levels on questions of scholarship, teaching, or service cannot be reconciled with clear language in the Faculty Handbook. The university-level review includes the application of current university-wide standards and criteria for promotion and tenure.

Conclusion

If the Board overturns a lower level decision, it may be because the Board found flaws in the method and care of application of the approved standards by the lower level unit(s), including matters of stringency, consistency, and fairness, or because the candidate did not meet university-wide standards and criteria for promotion and tenure, or both. A faculty member who has been denied tenure cannot reverse that decision simply by arguing that the “wrong” result was reached at any level – department, college/school, or university. Rather, the faculty member must establish a violation of the policies and procedures set out in the Faculty Handbook. As the above discussion demonstrates, nothing in the Faculty Handbook precludes a substantive review of the tenure candidates’ scholarship, teaching, and service at the university level. And nothing in the Faculty Handbook requires that the Board accept without question the lower level recommendation. To the contrary, it requires a critical review of the lower level and an independent substantive recommendation at the higher level. Accordingly, an unsuccessful tenure applicant may not successfully base an appeal on the contention that the Faculty Handbook was violated because the school/college or university-level reviews reached a different result than the lower level review. Rather, an unsuccessful tenure applicant must present facts demonstrating that tenure process steps and procedures listed in the Faculty Handbook were not followed. This is a matter of process, not of end result.

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