DePaul University Task Force on Academic Freedom and Shared Governance (Report)

This report was written in the wake of the June 2007 tenure and promotion denial cases of Drs. Norman G. Finkelstein, then assistant professor of political science and Mehrene Larudee, assistant professor of international studies. The task force report is notable for its precision, organisation and dedication to academic freedom and shared governance. Issues of unwarranted and systemic dismissal by the University Board on Promotion and Tenure of positive recommendations from department, college level committees and dean, the egregious influence by outside advocates and the behavior of certain faculty in soliciting external allies and submitting minority reports are directly challenged by  the FGC Task Force on Academic Freedom and Shared Governance. This is a document that should become the gold standard in higher education in assessing and advocating the reversal of highly politicised and poorly conducted tenure and promotion cases at an institution of higher learning.

October 12, 2007

Dear LAS [Liberal Arts and Sciences] Colleagues:

In June 2007 the LAS Faculty Governance Council created and charged a task force to examine procedure, policy and academic freedom concerns arising from a set of six recent tenure and/or promotion denials. Attached is the resulting report of the FGC [Faculty Governance Council] Task Force for Academic Freedom and Shared Governance. The report builds off of the past year’s record in providing a detailed analysis of tenure and promotion processes and academic freedom protections laid out in the Faculty Handbook and LAS Promotion and Tenure Guidelines.

 Several aspects of the 2006-07 record were of concern to Faculty Governance Council when it created the task force. Four of the six cases, denials of promotion to full professor for LAS associate professors, constituted all cases for promotion to full professor forwarded from LAS to the university board in 2006-07. All four of those applicants had received the support of the college dean, the college personnel committee and their home units. All were rejected for promotion after a negative vote of the university board and acceptance of the board’s decision by the university president.

The two tenure denials followed a similar pattern: strong or unanimous home unit and college personnel committee support followed by negative vote of the university board and acceptance of the board’s recommendation by the president. The college dean gave a positive recommendation in one of the tenure cases, and a negative recommendation in the second. In addition, the Faculty Governance Council had voiced concerns in a  November 2006 letter about interference from outside parties in the case of one of the

LAS applicants for tenure.

I am hopeful the task force report will inform a college-wide discussion regarding ouvision for future promotion and tenure practice and policy in LAS. As Chair of the college governance council, I thank the Task Force for its work, and commend its members for pursuing this project with great integrity and in a spirit of collegial shared governance. I see the report as an important step in protecting a fundamental principle of shared academic governance and academic freedom at DePaul: that departments and programs have primacy over academic personnel evaluation, including decisions on tenure and promotion.

Please read the task force report and post freely your comments or questions on the linked comment page. The next steps in this process should involve an open deliberation of the issues raised in the report, in particular its recommendations for action.

Sincerely yours,

Gil Gott,

Chair, Faculty Governance Council

FGC Task Force on Academic Freedom and Shared Governance

Report on Shared Governance

In the summer of 2007, the Faculty Governance Council authorized the creation of the Task Force on Academic Freedom and Shared Governance. This task force was charged with investigating potential violations of academic freedom and shared governance practices in the LAS promotion and tenure denials announced in June 2007. This part of the task force’s report, on shared governance, was written by consulting the college’s, university’s, and profession’s governing documents on shared governance, especially those dealing with the various issues, criteria, policies, procedures, and constituencies involved in the promotion and tenure process. While working on this report, the task force also carried on a parallel investigation of the specifics of the two LAS promotion and tenure denials and the generalities of the four LAS promotion denials. Emphasis has been added to the quoted texts by italics.

1) Criteria for tenure and promotion. Collegiality and Vincentianism. Review of criteria (by University Board on Promotion and Tenure [UBPT]).

Background: In at least one instance this year, an LAS faculty member going up for tenure and promotion was labeled insufficiently “Vincentian” or un-“Vincentian” by the dean. This formed the basis of the dean’s unwillingness to endorse the unanimous vote of the College Personnel Committee (CPC) for tenure and promotion. This raises issues regarding what criteria are to be considered in tenure and promotion cases and whether “Vincentianism” or collegiality should factor into any consideration for tenure and/or promotion.

Criteria for tenure and promotion

General criteria for tenure and promotion are stated in the university Faculty Handbook (FH), in accord with AAUP [American Association of University Professors] criteria and guidelines for faculty peer reviews. These are found, generally, in section II, “Academic Rank and Titles” (FH, II, p. 1):

GENERAL CRITERIA

The principal criteria for initial appointment and promotion in academic rank are quality of teaching; scholarship, research or other creative activities; and service. (p.1)

The expectations of each rank regarding all three-“teaching; scholarship, research or other creative activities; and service”-are specifically referred to in the subsequent description of the ranks of “assistant professor,” “associate professor,” and “professor” found on pp. 1-2. These are the only three criteria for evaluation and review mentioned

FGC Task Force on Academic Freedom and Shared Governance 2 in the FH. These criteria are also restated in section V, “Evaluation of Faculty” (FH, V, p. 2):

Promotion and Tenure Review

General Criteria

DePaul University shall appoint, retain, promote, tenure and reward faculty who best help the university attain its goals and fulfill its mission, as these are articulated in this Faculty Handbook.

The criteria for the decisions are the quality of the candidate’s:

1. teaching and learning

2. scholarship, research, and/or other creative activities, and

3. service to the university (p.3)

This section elaborates on the university definitions, guidelines, criteria, and evaluation processes of candidates for tenure and promotion, based on teaching, scholarship, and service (FH, V, pp. 3-9). Central to the general statements found in this section are three significant prefatory paragraphs that assign the home unit the primary authority to develop guidelines and further explicate these criteria that meet university approval (p.3). Comment 1.1: These three criteria are the hallmarks of peer review established by the AAUP. There is no indication in this section about a fourth, and overriding, criterion: collegiality or “Vincentianism.”

Collegiality and Vincentianism

In addition to the university FH, the College of LAS “College Promotion and Tenure Procedures” (LAS P&T) document offers three additional statements regarding criteria and process in its section 5 “Criteria” (LAS P&T, 5, p. 4).

The first, 5.1, indicates that “The College of Liberal Arts and Sciences recruits and retains faculty who combine enthusiasm for teaching with a commitment to scholarship, research, and collegiality.”

Significantly, the section elaborates only on the first three-teaching, scholarship, and research-and emphasizes the first as paramount. For instance, “If tension should arise between teaching and research, the college supports effective teachers who have limited research agendas….”

The second additional statement, section 5.2, offers a gloss on “collegiality” which is rather limited and very vague:

Collegiality is central to the success of the college and carries with it both benefits and responsibilities. Collegiality means participation in the governance and the intellectual life of the university; it means an acceptance of teaching as the primary mission of the college and the University; it means a respect for the unique traditions of DePaul as a Catholic, Vincentian, and urban university; it means a presence on campus for the benefit of other faculty and of students.

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Comment 1.2.0: In one of these glosses (italicized, above), collegiality seems to be derived from DePaul’s mission as a “Catholic, Vincentian, and urban” institution, but there are problems here. First, nowhere are these terms defined. Second, nowhere is one of these values given preeminence anywhere in the LAS P&T document (that is “Vincentian” over, say, “Catholic“). Third, nowhere in any of the previous procedures, and conspicuously absent from section 2 “Promotion/Tenure Documentation” (pp. 1-2), is there any mention of collegiality as a criterion (indeed, it is only listed in section 2.5.1

“External References for promotion to Full Professor,” requiring departments to comment on a candidate’s collegiality in its recommendation to full professor; given that the LAS faculty member in question was up for tenure and promotion to the rank of associate professor, this should not have been applied at all). Fourth, nowhere does the document ask departments or programs to develop a unit definition of the “collegiality” criterion or a process for evaluating a candidate against the criterion. And, fifth, nowhere does the document provide guidance to candidates for tenure and promotion on how to prepare a dossier that includes a statement on-and supporting evidence for-collegiality.

Comment 1.2.1: Additionally, the AAUP has been very clear on rejecting collegiality as a criterion for evaluating faculty. See its statement on collegiality as an evaluative area:

(http://www.aaup.org/AAUP/pubsres/policydocs/collegiality.htm). The organization’s main concern is that “The elevation of collegiality into a separate and discrete standard is not only inconsistent with the long-term vigor and health of academic institutions and dangerous to academic freedom, it is also unnecessary” (AAUP: “On Collegiality as a Criterion for Faculty Evaluation”).

Comment 1.2.2: Finally, the third additional statement, section 5.3, charges departments to develop unit criteria to reflect the “general criteria adopted by the University”; however, these criteria, listed above, only list:

1. teaching and learning

2. scholarship, research, and/or other creative activities, and

3. service to the university (FH, V, p.3)

This is in keeping with section 5.4 of the LAS P&T document, where there is, again, no mention of collegiality.

Review of criteria (by UBPT)

According to the FH (FH, II, p. 1): “Criteria, which are approved by and included in official documents of the academic units, are as binding on the members of those units as are the general university standards for which they provide explication.” The FH, therefore, recognizes explications of university standards, without explicitly recognizing additional or overriding criteria and standards. Indeed, this statement of the FH (above) goes on to state: “Should there be a difference between the two sets of criteria, those of the university shall prevail.”

Comment 1.3: Department or program criteria are ultimately submitted to the University Board on Promotion and Tenure for approval. According to past practice, unless the department or program hears to the contrary, the criteria are considered “approved” and operational. In the absence of any prior notification to the contrary, the home units can only assume that their “explications” of university standards are acceptable. Tenure-track FGC Task Force on Academic Freedom and Shared Governance 4 faculty within these home units assume that the “explications” are expectations and plan the probationary stages of their careers accordingly. Tenured faculty within these home units assume that the “explications” will guide them in mentoring and evaluating their tenure-track colleagues. All of this is done by home units and their faculty in good faith.

That faith is challenged or even broken when the process fails to live up to its promise or operates by criteria which have been changed without discussion and/or dissemination.

The task force believes that this is the current critical situation in the college.

2) Rights and responsibilities of faculty, generally, on matters of personnel. Rights and responsibilities of faculty, specifically, during the stages of review at all levels: department, college, university.

Background: In the cases of the two tenure denials and four promotion denials (to full professor), the recommendations of the department or program, as well as the recommendations of the CPC were set aside and “overruled” by the UBPT. In five of the six cases, the recommendations of the dean were also set aside and overruled. This raises the question of the rights, responsibilities, and powers of the three separate levels of review.

Rights and responsibilities of faculty, generally, on matters of personnel

The governing documents from units to college to university are framed by the language, sometimes explicit, often implicit, of rights and responsibilities.

For example, in the section on “Faculty Governance and Participation in Governance,” the university FH states:

6. Faculty governance regarding academic programs, curriculum, and faculty status regularly takes place through departments, programs, colleges and schools. Primary governance within these bodies shall continue as in the past to reside within these bodies as well (FH, I, pt. 6, p. 2).

This FH section goes on to assert the “Primary Responsibilities of the Faculty”:

The faculty is vested with primary governance responsibility of academic and scholarly activities and faculty personnel matters within the University, including the following:

2. Academic freedom, including rights and responsibilities.

3. Standards and procedures concerning faculty promotion, tenure, appointments, retention, and performance.

4. Adjudication of grievance and disputes in all matters involving faculty members. (p.2) …

7. Matters pertaining to research, scholarly, and creative activities. (p.3)

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Rights and responsibilities of faculty, specifically, during the stages of review at all levels: department, college, university

Section V, “Evaluation of Faculty,” sharpens the rights and responsibilities of the faculty in the home unit (i.e., department, program, college) re: developing guidelines and criteria for faculty peer review. Three paragraphs stand out for emphasis and are quoted in full:

The determination that an individual meets these criteria is made primarily on the basis of guidelines promulgated by the candidate’s department or – in the absence of departmental structures – by the college or school, which state what is to be expected of faculty with regard to the above areas.

These guidelines are to be informed by criteria specific to that unit’s professional discipline, field or interdisciplinary area. The academic unit employs these guidelines only after they have been approved as being consistent with the general university criteria stated in this Faculty Handbook (following section). The University Board on Faculty Promotion and Tenure, consisting of representatives from the colleges or schools appointed by the Faculty Council, shall be responsible for making these determinations.

Decisions subsequent to that made at the initial 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 thecollege/school or university level. Only in cases where lower level decisions are judged to be deficient in significant respects shall upper level units make their own application of the substantive criteria of the candidate’s scholarly or artistic area (FH, V, p.3).

Comment 2.1: In the second paragraph (above), the role of the UBPT is to review and approve the guidelines “as being consistent with the general university criteria stated in this Faculty Handbook.” There are two points to reiterate: first, that the university criteria are limited to teaching, scholarship, and service and, second, that the home unit has the responsibility for interpreting these criteria within the standards and expectations of its field (“where one’s peers are assumed to represent the institution’s best expertise in the relevant academic field” FH, V, p.3). In the event that this interpretation is not consistent with-or rigorous enough to meet-university criteria and expectations, the implication is strong that the UBPT will notify the home unit of any such inconsistency or deficiency.

Note that the FH imparts two possibly contradictory powers to upper levels of review in the third paragraph. On the one hand, the UBPT is limited to an assessment of the home unit’s review process and its “stringency, consistency, and fairness.” On the other it may “consider… any unusual implications the decision may have at the college/school or university level.” These “implications” are not, however, articulated in this section (asthey are in the AAUP standards, which include shifting academic priorities and financial exigency). However, the final statement in the passage (italicized above) reiterates that the primary rights and responsibilities reside with the home unit.

FGC Task Force on Academic Freedom and Shared Governance 6

The FH also indicates, in this same section, under “Guidelines and Criteria,” that in addition to the home unit’s assessment of effective teaching and service,

4. The faculty of a department, college or school will determine which forms of scholarship particularly advance and communicate knowledge within a disciplinary or interdisciplinary field and how the products of scholarship will be weighed. (FH, V, p.5)

Role of the UBPT

The FH develops the role of UBPT further in this section. Specifically, the FH states that The board [UBPT] shall have the following responsibilities:

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

2. to review: a) the candidates[‘] application and supporting materials, b)recommendations from prior levels, and c) the application of departmental and/or college criteria to the candidate;

3. to recommend action for tenure and/or promotion of the candidate;

4. to review college/school guidelines and criteria to insure consistency with stated university expectations as well as reasonable application of these criteria to the evaluation of faculty members (FH, V, p.14).

The first point is related to the criteria raised in section 1 of this document (see above).

(There are also a few general and preliminary comments on ranks found in the FH, V,

pp.4-10.) The fourth point is likewise related to the UBPT review of department, program, and college “explications” of university criteria (again, see section 1, above).

The third point is important. Here, the nature of the “recommendation” is constrained by the wording of the second point, which limits the UBPT review to “the candidates[‘] application and supporting materials, b) recommendations from prior levels, and c) the application of departmental and/or college criteria to the candidate.” Again, this assigns substantive reviews primarily to the home unit(s) and procedural reviews primarily to theupper levels of review. The FH does not assign any additional specific authority to the

UBPT beyond these (e.g., to override lower level reviews on substantive grounds), nor does it elaborate on any criteria used by the committee to allow for greater authority or discretion, nor does it provide any procedural guidance to the board (or to the faculty it is to represent) to allow for greater authority or discretion.

The primacy of the home unit in conducting “substantive reviews”

Significantly, the FH closely follows the AAUP policy statement on “Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments” in its main elements.

The AAUP statement allows for “review” (i.e., appeal) of prior decisions based on either violations of academic freedom (or bias) and/or procedure. This section of the task force review will concentrate on the latter point and the AAUP statement will be presented extensively. Here, “review” refers to the appeal process, in the context of what is and is not within the purview of the “review,” or appeal, committee. The point that we wish to emphasize is the language regarding the significance of the home unit review to issues of “professional judgment,” “primary authority,” and the “tradition of departmental autonomy.”

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Three paragraphs from the AAUP document stand out for emphasis and are quoted in full:

Review Procedures: Allegations of Inadequate Consideration

Complaints of inadequate consideration are likely to relate to matters of professional judgment, where the department or departmental agency should have primary authority. For this reason, the basic functions of the review committee should be to determine whether the appropriate faculty

body gave adequate consideration to the faculty member’s candidacy in reaching its decision and, if the review committee determines otherwise, to request reconsideration by that body.

It is easier to state what the standard “adequate consideration” does not mean than to specify in detail what it does. It does not mean that the review committee should substitute its own judgment for that of members of the department on the merits of whether the candidate should be reappointed or given tenure.3 The conscientious judgment of the candidate’s departmental colleagues must prevail if the invaluable tradition of departmental autonomy in professional judgments is to prevail. The term “adequate consideration” refers essentially to procedural rather than to substantive issues: Was the decision conscientiously arrived at? Was all available evidence bearing on the relevant performance of the candidate sought out and considered? Was there adequate deliberation by the department over the import of the evidence in light of the relevant standards? Were irrelevant and improper standards excluded from consideration? Was the decision a bona fide exercise of professional academic judgment?

These are the kinds of questions suggested by the standard “adequate consideration.” If, in applying this standard, the review committee concludes that adequate consideration was not given, its appropriate response should be to recommend to the department that it assess the merits once again, this time remedying the inadequacies of its prior consideration.

The task force, in presenting this excerpt from the AAUP statement on “Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments,” recognizes that it is using an AAUP statement which is in explicit support of an appeal process and which sets out the specific procedure for such a review. The task force wishes to emphasize the following points: 1) that there is a consistency throughout the various relevant AAUP policy and procedure statements regarding the primacy of the home unit’s expertise and experience in determining the criteria and expectations within its disciplinary or interdisciplinary field and applying them in the evaluation of its probationary faculty;

2) there is great congruity between these AAUP statements and the FH’s “evaluation of faculty” policies and procedures regarding the levels of review and the limits placed on reviews above those of the home unit; and 3) that this specific AAUP statement reasserts the primacy of the initial home unit review, the limited focus of later reviews (in this case, appeal reviews, but it is the task force’s assertion that this also applies both implicitly and explicitly in the FH to the UBPT review), and the right of appeal. In essence, the AAUP statement is clear that procedural violations include the setting aside FGC Task Force on Academic Freedom and Shared Governance 8 of review recommendations held in home units on non-procedural grounds. The FH is in fundamental agreement with the AAUP on this point.

Comment 2.2: The FH is ambiguous in one part only (V, p. 3), noted above, regarding UBPT review criteria. However, seen in light of its own and the AAUP statements regarding shifting academic priorities and financial exigency, the UBPT may act to “consider… any unusual implications the decision may have at the college/school or university level.” Again, both the FH and the AAUP statement assign primary rights and responsibilities for review criteria and evaluation to the home unit, and the AAUP considers any deviation from this process a possible violation of “inadequate consideration” and subject to “appeal.”

Comment 2.3: The task force is very concerned about the inadequacies of the current College of LAS’s “College Promotion and Tenure Procedures” (LAS P&T) document.

There are serious gaps throughout the document, as well as loosely organized procedures. The document states, with some lack of clarity and organization, that home units are responsible for developing specific review criteria and procedures, but it does not state how their faculty review reports are to be processed and evaluated by the College Personnel Committee. The task force attempted to acquire information regarding the criteria and procedures used by the College Personnel Committee, but the information that is available is based on “previous practices,” not on any agreed upon document.

There are issues that are of concern, among which are: how are meetings conducted? who chairs the committee? who manages the personnel files and dossiers? who is responsible for managing any written records of the committee? does the committee write its own recommendation to the dean and the UBPT? if not, why not? if such a recommendation is to be forwarded, how will it be assessed by the UBPT (of equal value to the dean’s? of lesser? of greater? why?)

One of the most important recommendations that this task force can make is to urge the development-by the FGC-of a clear and workable LAS P&T document that addresses these and other concerns.

Comment 2.4.0: The task force is also very concerned about recent statements by university officials that the faculty peer-review process is a faculty-driven process.

While this is generally true, it requires certain caveats and raises significant concerns about whether this is strictly true. In the first instance, any level of the faculty peerreview process is susceptible to influence and/or pressure from administrative officers, especially those-like a dean or provost-who chair the review committees. While this may, or may not, have happened in recent cases, the system as currently structured allows opportunities for such subtleties or abuses. This becomes even more problematical when the only written statement of the review committee deliberations is drafted by those administrators, or the representatives of those administrators. The task force recommends that, while an administrative presence may be desirable (and the committee maintains that it is), the role of the administrator should be non-voting and relatively passive, except in cases when there is the potential for unfairness and/or injustice towards a candidate up for review.

Comment 2.4.1: The review committees at both the college and university levels should be responsible for documenting their separate recommendations in writing. These recommendations should be part of the review process at all levels. This should be true in all cases, but should be particularly true whenever college and university recommendations differ from those of the home units. Looked at another way, since FGC Task Force on Academic Freedom and Shared Governance 9

“[t]he determination that an individual meets these criteria is made primarily on the basis of guidelines promulgated by the candidate’s department” and “[t]hese guidelines are to be informed by criteria specific to that unit’s professional discipline, field or interdisciplinary area,” the FH requires that these home units conduct intensive internal peer reviews and report their findings through formal reports. The FH stipulates that “[o]nly in cases where lower level decisions are judged to be deficient in significant respects shall upper level units make their own application of the substantive criteria of the candidate’s scholarly or artistic area” (all three quoted passages from FH, V, p.3).

The task force believes that these upper-level review committees (at the college and university levels) should be required to submit formal reports which indicate the bases for agreement or disagreement with the recommendations of the home unit(s). These reports will also provide the foundation for any rebuttal on the part of the candidate, the home unit, or mid-level review committee (when appropriate).

Comment 2.4.2: In the second instance, the claim that “the faculty peer-review process is a faculty-driven process” while generally true, is not strictly true in recent cases. In the case of Dr. Finkelstein, faculty peer reviews at the home unit and college levels were set aside by the UBPT, without any clear statement outlining the lower-level unit’s “deficiency in significant respects” of the application of agreed-upon criteria and standards. That is, the recommendations of two levels of faculty peer-review were reversed by a third level, without clear and justified cause.

In the cases of Dr. Larudee and four applicants for promotion to the rank of full professor, in addition to the overwhelming support of faculty peer reviews at both the home unit and college levels, the dean of the college also submitted strong letters of support. These faculty (and administrative) recommendations were also set aside by the UBPT. Therefore, the taskforce asserts that the more appropriate claim is that one level (unfortunately, the upper level) of the faculty peer-review process overruled two levels of the faculty peer-review process (in some cases, two levels of unanimous faculty peer-review recommendations), without demonstrating why the lower level reviews were in any way insufficient. Indeed, even more significantly, one or two faculty members on the UBPT overruled two levels of the faculty peer-review process.

3) Role of the administration, generally, in the review process. Roles of the Dean, Provost, and President.

Background: Throughout the tenure and promotion process, administrators are involved in convening personnel committee meetings, making recommendations, and reaching “final” decisions. This raises issues regarding the authority of administrative officers and whether there is any inconsistency between that authority and the principles of shared governance. In the six LAS cases under review here, only one involved a negative recommendation by the dean. All six involved negative recommendations (or reports) at the level of the provost and “decisions” at the level of the president.

Role of the administration, generally, in the review process

DePaul, as with other universities, places those with faculty status into administrative positions throughout the academic hierarchy.

 FGC Task Force on Academic Freedom and Shared Governance 10 The process of peer review involves these faculty-administrators at every stage. At the college or school level (the “second stage of the review”), the FH recognizes, among others, the responsibility of the dean to submit a recommendation on tenure and promotion to the UBPT. At the university level (the “third stage of the review”), the FH acknowledges the responsibility of the provost or EVP-AA to make “a recommendation to the president based on the university board’s decision.” Finally, the president makes the “final decisions” (FH, V, pp.13-14). These will be considered more fully below, with the complete relevant passages from the handbook.

Role of the Dean

According to the FH, the dean is to monitor the schedule for promotion and tenure and submit a recommendation to the next level of the review. However, the FH also allows for the creation of a college personnel or review committee: The academic dean of the respective college or school conducts the second stage of the review. In this process, a college or school personnel committee may advise the dean. The dean has the responsibility for submitting a comprehensive review of each candidate. When the dean’s decision differs from that of the tenured faculty, college or school personnel committee (where one exists) or departmental recommendation, the dean shall inform all involved parties of his or her decision and the underlying reasons.

The dean’s formal recommendation to the University Board on Faculty Promotion and Tenure shall also explicitly cite the reasons that comprise his or her recommendation. Regardless of whether they are in accord, the dean and the college or school personnel committee may submit separate recommendations, if desired. The dean’s recommendation, the recommendation and numerical vote of the personnel committee, along with the candidate’s supporting material are to be submitted to the executive vice president for academic affairs on or before the appropriate date as specified for a specific college or school…(FH, V, p.13).

The college’s P&T document mentions the existence of the College Personnel Committee (CPC) in the “calendar” (1.2-1.4) and “procedures” (4.1) sections. The document has only one significant procedural comment, that the “College Personnel Committee will meet to consider these requests [for promotion and tenure] and to make recommendations to the dean” (1.3, p.1). There is nothing in the document which explains the nature of the deliberations (e.g., who chairs the meeting, whether minutes will be kept, etc.), whether there is to be a separate CPC report (along with a vote), nor whether the CPC can or should send a rebuttal in the event of a disagreement between the dean and the CPC. The task force requested a copy of any other governing document, but was told that none exists.

Comment 3.1: The task force recognizes the importance of including our administrative colleagues in the faculty review process. But, the task force also recognizes that thecurrent LAS P&T document does not adequately or explicitly state the role of the dean in the LAS CPC review process, nor does it state the relationship and responsibilities of the dean and the CPC when they differ. This creates a significant gap in policy and procedure that threatens the assumptions of shared governance. While the FH and the P&T document allow for faculty input at the second level, the CPC’s recommendation is FGC Task Force on Academic Freedom and Shared Governance 11 communicated, by way of the dean, only as a summary of discussions and the final vote for or against promotion and/or tenure. The task force recommends that the CPC develop procedural guidelines that include a separate written committee report, as well as a rebuttal, if deemed necessary by the CPC.

 Role of the Provost

The role of the provost/EVP-AA is also somewhat vague. The FH states that:

The third stage of the review is by the University Board on Faculty Promotion and Tenure, which meets during the spring quarter. The executive vice president for academic affairs makes a recommendation to the president based on the university board’s decision (FH, V, p.13).

Comment 3.2: Again, there is a serious policy and procedure gap, similar to the one above (3.1). There is no explanation whatsoever of the function of the provost/EVP-AA in the UBPT proceedings. From what the task force has been told, there is no separate written report from the UBPT. And, again, the administrator is the sole communicator of the committee’s deliberations and vote. The task force strongly recommends that the same attention to detail regarding the lower-level review policies and procedures be incorporated into upper-level policies and procedures. There are three compelling reasons for this. First, it addresses an implicit assumption that only lower-level reviews require explicit policies and procedures to ensure the quality and integrity of those reviews. The task force asserts that this requirement should be in place for each and every level of review. Second, it addresses another implicit assumption that the lower level department or program faculty reviews require an oversight and accountability that more administratively-guided faculty reviews do not. The task force rejects this implication. Third, it specifically addresses the right of reviewed faculty to respond to negative reviews that are passed up. (For example, see FH, V, p.12: “Minority or other reports will be filed with the next higher level only when the candidate has had the opportunity to review such reports in order to respond appropriately. Minority and/or dissenting reports must provide explicit explanations and rationale.”)

Role of the President

Though the role of the president seems less ambiguous on these matters, it, too, needs further clarification in the FH:

The president of DePaul University shall make final decisions regarding promotion and/or the granting of tenure. On or before June 15th, faculty members will be given written notification of the president’s decision. In cases of a negative decision, the president will include in the written notification the reasons for such a decision….

Only in rare instances and for compelling reasons will the president overturn a promotion or tenure recommendation made by the University Board on Faculty Promotion and Tenure (FH, V, pp.13-14).

Comment 3.3: While the president’s “decision” is recognized as “final” in this section, it does not preclude an appeal process, nor would an appeal process compromise the president’s right to accept or reject the appeal or review committee’s report or FGC Task Force on Academic Freedom and Shared Governance 12 recommendation. In other words, the decision of the president is final, in the event that there is no appeal in the first instance. And, the decision of the president is final (at this stage of the process), even if there is a subsequent appeal. The task force believes that the recognition of the right of appeal in no way diminishes the ultimate authority of the president.

Comment 3.4: More generally, the task force notes with concern the unfortunate lack of clarity in terminology re: the usage of the words “advises,” “recommends,” and “decides” throughout the evaluation section of the FH (FH, V, especially as quoted above). Thus, home units and deans and provosts/EVPs-AA “recommend”; college or school personnel committees “advise”; the university board (UBPT) both “recommends” and “decides”; the president “decides” yet cannot “decide” contrary to the UBPT “recommendation” except “in rare instances and for compelling reasons” which are not enumerated or commented on. The task force strongly recommends a tighter wording of this part of the FH.

4) Faculty rights, implicit and explicit. Right to a fair hearing, of response and rebuttal, and of appeal.

Background: In the six cases under review, the committee noted a real and disturbing pattern concerning certain faculty rights that were either infringed upon or denied entirely. In addition to the right to academic freedom (which the task force and the AAUP deem to be absolute), these rights deal with essential workplace fairness and justice, as well as due process. These rights are both explicitly stated in the FH, as well as implicitly indicated in the tone and substance that characterize the handbook. Any infringement or denial of these rights can only be suggested through a selective and, to borrow a phrase, “insufficiently Vincentian” reading of the FH.

Faculty rights, implicit and explicit

The FH includes an important, though incompletely integrated and somewhat “nuts and bolts,” section on “Faculty Rights and Responsibilities.” The section echoes, in the first part, some of the AAUP statements on these topics. A passage under the heading “Academic Freedom” has been used to argue that “persons engaged in learning and research exercise this freedom and respect it in others as contributing to the God-given dignity of individual persons and enhancing the academic process” (FH, VII, p. 1) and, thus, that collegiality, or “Vincentianism,” is the expectation of all faculty. However, this quoted passage is part of a larger statement:

 DePaul accords academic freedom a prominent position as an integral part of the university[‘s] scholarly and religious heritage. The university attempts to create an environment in which persons engaged in learning and research exercise this freedom and respect it in others as contributing to the God-given dignity of individual persons and enhancing the academic process. University precept and tradition protect this freedom from infringement. Not only the faculty, but students and other members of the university community enjoy this freedom as they participate in the various forms of open inquiry and debate, as for example, classroom FGC Task Force on Academic Freedom and Shared Governance 13 presentation and discussion, research and publication, public statements made as a citizen in one’s own name, and other forms of creative expression.

Comment 4.1: The emphasis to this passage has been added to indicate that the responsibility for ensuring academic freedom resides with the university. In short, it is the university that “accords academic freedom a prominent position” and it is the university that “attempts to create an environment” in which this freedom may be exercised. It is not the responsibility or authority of individual faculty to accord “a prominent position” to-or “create an environment” for-academic freedom.

This point is made even more clearly in the next paragraph, in which the FH asserts that:

“DePaul University is guided by the 1940 Statement for Principles of Academic Freedom and Tenure of the American Association of University Professors, together with the Interpretive Comments, which is found in the AAUP Policy Documents and Reports,

1990. (http://www.aaup.org/1940stat.htm).” Even though the next caveat is added, “However, the university expressly reserves the right to amend, alter, modify, and delete the same with the assent of the Faculty Council” the task force has found no instance where this freedom has been amended, altered, modified, or deleted “with the assent of the Faculty Council” (FH, VII, p.1).

Right to a fair hearing, of response and rebuttal, and of appeal

This section of the FH also lists numerous “Faculty Obligations” and the enforcement and adjudication of any infringements of these obligations.

Consistent with the Catholic and Vincentian heritage, DePaul University is committed to preserving an environment that respects the personal rights and dignity of each member of the community. Therefore, DePaul University will not tolerate the harassment and/or discrimination of any kind of any person or group of individuals including, but not limited to age, race, national origin, sex, religion, a person with a disability, and/or sexual orientation. Harassment is defined as any behavior (verbal, written, or physical) that abuses, demeans or victimizes any person based on the above distinctions. DePaul University reserves the right to take such actions as are consistent with its procedures to deal with such individuals engaged in such harassment and/or discrimination.

(FH, VII, p.2).

Comment 4.2: There are two points to be made about this passage. First, the passage specifically refers to discriminatory practices and harassment on the bases of “age, race, national origin, sex, religion, a person with a disability, and/or sexual orientation.” It does not refer to differences of opinion, scholarly interpretation, or academic analysis.

Second, the passage refers to the university’s “right to take such actions as are consistent with its procedures to deal with such individuals engaged in such harassment and/or discrimination.” The “procedures” for such discriminatory acts are not to be found in the evaluation of the faculty section of the FH (which limits the evaluation of faculty to the three criteria stated above). Rather they are to be found in FH and university policies regarding unprofessional behavior, with a separate set of procedures.

FGC Task Force on Academic Freedom and Shared Governance 14

Comment 4.3: Explicit throughout the FH are specific rights and responsibilities of the faculty. These include the primary oversight of the academic curriculum and its implementation, the evaluation of student academic work, and the selection and evaluation of faculty. The FH also makes clear that there are faculty rights and responsibilities to serve in faculty governance, to be consulted and to advise the administration in certain university matters. These are consistent with the AAUP guidelines, standards, and policy positions. There are no additional responsibilities in the FH, except for those specifically dealing with “quality of teaching; scholarship, research or other creative activities; and service,” which are considered in the stated FH promotion and tenure evaluative criteria.

Comment 4.4: Implicit throughout the FH are additional rights and responsibilities of the faculty. These include the right to a fair hearing, the right of response and rebuttal, and the right of appeal. These are likewise consistent with the AAUP and, more generally, with assumptions of a just workplace (and of redress of injustices when appropriate).

The university recognizes some of this in the FH itself, in the prefatory comments in section VII. And, significantly, there is no passage in the FH or other promotion and tenure guidelines which explicitly denies faculty the right to appeal a negative tenure or promotion decision. It is the opinion of the task force that, if it is the case that the right of appeal is not found in the “evaluation of faculty” section (V) of the FH, it is in the “separation” section (VI) and is not denied anywhere in the FH.

In the FH section which deals with “separation” (VI), the right of appeal, or “review,” is asserted in the “Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.” The language used is consistent with AAUP statements regarding decisions not to tenure faculty. The FH states that:

A nontenured faculty member whose petition has not been reviewed by the Promotion and Tenure Board can request this formal review on any or all of the following grounds:

1. That the faculty member’s academic freedom was violated by the dismissal itself.

2. That the process by which the decision not to renew was made applied inappropriate criteria or applied appropriate criteria unfairly or failed to meet reasonable standards of thoroughness[.]

3. That the evaluation of the candidate was not in accord with the policies and procedures set herein.

This would seem to support the university counsel’s reading that there is no right of appeal (“review”) of the UBPT “recommendation” or “decision.” However, the FH goes on to assert that: A nontenured faculty member whose petition has been reviewed by the Promotion and Tenure Board, can request this formal review only on grounds of (1) or (3) specified above (FH, VI, p.4).

This clearly states that a nontenured faculty member who has been reviewed by the UBPT can request this appeal, or review. Considering that nontenured faculty are only reviewed by the UBPT when they are going up for promotion and tenure, the right of appeal is clear. (For the whole section on this appeal process, see FH, VI, pp.4-6. Interestingly, the appeal or “review” committee [or board] reaches a “final decision

FGC Task Force on Academic Freedom and Shared Governance 15 which is communicated to the “Executive Vice President for Academic Affairs and the appealing faculty member.” It also notifies “the faculty member’s dean, department chair and the President of the Faculty Council in a timely manner” [FH, VI, p.5].)

Comment 4.5: The task force strongly recommends that these implicit rights-the right to a fair hearing, the right of response and rebuttal, and the right of appeal-be stated explicitly in future iterations of the FH. The task force, in articulating these rights, does not intend to limit faculty rights to those explicitly stated in the FH. Rather, on those occasions when rights are not recognized as “given,” they must be articulated and stated.

5) Role of minority reports. Role of outside pressure.

Background: In one case of tenure denial, a minority of tenured faculty within a department filed a dissenting report that leaned heavily on outside and biased sources.

This raises a great concern regarding the appropriateness-and undue influence- of what are essentially undemocratic elements in the review process. In this section, the task force will address additional concerns which came up during our investigations and deliberations.

 Role of minority reports

First, the task force is concerned about the role of minority reports in promotion and tenure cases. The FH does not require that a minority report be submitted. The FH states that:

The report on the recommendation from the home academic unit shall fully discuss both strengths and weaknesses in the record so as to provide an explanation for positive and negative votes. All faculty participating in the decision will read the final report of the unit’s recommendation and sign one of two forms:

  • One stating that the faculty member agrees that the report accurately represents the discussion of the unit, or
  • Another stating that the report does not accurately reflect the discussion of the unit.

The faculty member’s signature does not indicate the direction of the signatory’s vote. Faculty who sign the form indicating lack of agreement must provide a signed written statement of their reasons.

It is important to reemphasize that the “lack of agreement” which elicits this “statement of…reasons” is not with the substance of the unit’s personnel committee evaluation of the faculty member, but that the report “does not accurately reflect the discussion of the unit.” But the FH goes on to state that:

Minority or other reports will be filed with the next higher level only when the candidate has had the opportunity to review such reports in order to respond appropriately. Minority and/or dissenting reports must provide explicit explanations and rationale (FH, V, p.12)[.]

FGC Task Force on Academic Freedom and Shared Governance 16

The college’s P&T document, however, does limit the right to file a minority report. In the section on “Promotion/Tenure Documentation,” the college’s guidelines state that “If there is a divided vote, the minority concerns should either be reflected in the departmental recommendation or in a separate document” (LAS P&T document, 2.4.1,

p.2). There is no indication that “minority concerns…be reflected” in both the departmental recommendation and in a separate report.

Comment 5.1: While the task force recognizes the ambiguity regarding the submission and use of minority reports, it also emphasizes that department or program reviews need not be unanimous and that minority reports are just that-reports of the minority of the voting members of the home unit. The reports should be used to recognize dissenting views, without giving them undue weight in final decisions. That is, the recommendation of the majority of the home unit’s faculty should be significantly more important than the report of the minority.

Role of outside pressure

The task force also considered the significance of outside pressures on the university and its promotion and tenure review process. There is no statement in the FH that directly addresses this point. However, a few comments should be noted.

Comment 5.2: First, the FH does not require outside reviewers for tenure decisions (though some individual departments, programs, and colleges do). When outside reviewers are consulted, the practice is to be in accord with FH guidelines of mutual consent between the department and the faculty member under review. The task force strongly asserts that when outside reviewers are in fundamental agreement with the recommendation of the home unit, that the UBPT should exercise even greater caution and circumspection in considering the overturning of lower-level reviews. Independent solicitation of outside reviewers (in effect, outside influence or pressure), without department consent and with the intent to bias the case against a candidate can only be characterized as unprofessional at best and malicious at worst. Second, while it is hoped that such a solicitation would not influence deliberations, the reality is that unless the university is proactive in preventing or containing this outside pressure, it can only taint the process. To what degree may be debatable. That it does taint it is almost assured.

Indeed, whatever the real and tangible effect, this outside pressure gives the whole process the appearance of impropriety. (This is especially when these outside views work their way into the review process through a minority report.) The task force believes that the solicitation of outside influence by an individual member of a department, above and beyond the official department solicitation of outside reviewers, is one of the most avoidable and lamentable breakdowns in this year’s reviews, especially in the context of a process of evaluation of a colleague’s avocation and livelihood.

 6) Additional concerns.

During the course of its work, the task force noted additional important questions which should be raised in future policy discussions.

First, the task force was concerned that tenure and promotion dossiers are not required to include previous annual and/or formal reviews. While there may be important pros and

FGC Task Force on Academic Freedom and Shared Governance 17 cons to such a policy change, the discussion needs to be held and decisions need to be made and articulated in the FH.

Second, the task force is concerned that the FH does not address the question of appeal in the case of a negative review for promotion to full professor. Because the appeal (or “review”) policy and process are found in the “Separation” section of the FH, it does not extend to those faculty who wish to appeal a decision that does not involve separation.

Again, while there may be good arguments one way or another, the ultimate decision regarding this has to be made and articulated.

Third, the task force is concerned generally with issues of confidentiality. It is important to protect the privacy of individual candidates in the review process. It is also important to protect the privacy of review committee deliberations, which are to be candid and potentially critical. However, we should discuss how to protect privacy, while coming to an understanding that confidentiality should never be allowed to protect or perpetuate injustices, whether unintentional or not.

7) General Comments.

Each of the comments listed above form the specific recommendation of the task force. Below are a set of additional, more general, comments and conclusions.

1. The FH is clear that the “DePaul University generally follows AAUP guidelines, (http://www.aaup.org) except in instances where a policy is otherwise defined in this Handbook” (FH, VI, p. 1). However, the FH needs to address these important problems or omissions:

a. There is no “defined” criterion of collegiality in the FH and it should be removed from the LAS P&T document;

b. There is no sufficient reporting from the UBPT to colleges and departments or programs regarding the explications of university criteria within these units;

c. There are no “defined” processes of evaluation at the college or UBPT level, but there are well defined processes for lower levels of review and strictures regarding the preeminence of the home unit’s judgments on the substance of a review;

d. There are no written statements or recommendations generated at either the college (CPC) or university (UBPT) levels; and

e. There are no clearly “defined” roles for administration in review committee deliberations, recommendations, or “decisions” in the FH or LAS P&T document.

2. The recent UBPT practices violate stated and previous practices. The role of the UBPT has been “defined” in two ways:

a. To assess the criteria and processes of home units so that they are consistent with university criteria and processes; and

b. To assess the lower level reviews on the grounds of process to ensure that candidates are protected against restrictions on academic freedom, bias, or misapplication of established criteria.

 FGC Task Force on Academic Freedom and Shared Governance 18

The UBPT cannot impose criteria and processes that have not been discussed and agreed upon by the home units. It should rarely, if ever, re-review faculty de novo and override the expertise and evaluative efforts of the home unit. To do so is to imply an expertise and a thorough evaluative process at the upper level that simply could not-and should not-be the case. In the case of overruling decisions (on procedural-not substantive-issues, the UBPT is required to explain the reasons for ts decisions to the department or program. It has been questioned that if the UBPT is limited to such a review (as, indeed, it is), why would one want to serve on the board? This misses the point. Put another way, if lower level recommendations are ignored or set aside without just and manifest cause, why would tenured faculty in any department, program, or college wish to take part in the peer review process? In effect, the UBPT should ensure faculty a fair and just hearing. It should not be the source of unfairness and injustice.

3. Policy (as agreed upon and stated in the FH) and administrators should ensure that all parties-individuals and the institution-operate fairly and justly. However, when policy creates an unfair and unjust situation, administrators should work to rectify the unfairness and injustice. They should not perpetuate it by deferring to ambiguous passages in the FH or to an erroneous formulation of “faculty decisions.” They have a right and a responsibility to be objective, fair, and just arbiters.

4. The right to appeal previous personnel decisions is articulated in the appropriate section of the FH and adheres to the AAUP’s own practice of issuing these statements (review and appeal) in separate documents. This right to appeal is consistent with the legal system’s preference for “internal remedies” to university personnel matters. On the other hand, there is no “defined” prohibition against a faculty member’s right to appeal anywhere in the FH.

5. The review process, generally, has to be better articulated throughout the FH. The task force asserts that the FH should clearly articulate a policy and process that assigns primary (and predominant) review responsibility to the home unit, and that it should also set out clear limits to the use, and subsequent weight, of minority reports. Additionally, the handbook should develop a position on how the university should handle any outside pressure at any stage of the peer review process.

8) Recommendations:

1. Before all else, the task force strongly recommends that this past year’s situation-especially Dr. Larudee’s tenure denial, as well as those LAS colleagues who wish to appeal their promotion denials-be rectified before we proceed to other policy, procedure, or personnel matters. This means that we must allow a process of appeal to take its course and use existing FH and AAUP guidelines to proceed. This will ensure that individual faculty rights and privileges are balanced against institutional interests to reassure faculty of the university’s commitment to academic freedom, shared governance, and due process. It also reassures the academic community here and at large that unfair and unjust practices and decisions will not be reaffirmed but will be challenged. Simply put, it’s the right thing to do.

2. Incorporate most, if not all, of this task force’s findings and concerns into revisions of the college and university handbooks. The LAS P&T guidelines urgently need to be

FGC Task Force on Academic Freedom and Shared Governance 19 more in line with the university’s, and its criteria, procedures, and expectations need to be made clear and more consistent. The Faculty Council Handbook Committee should consider these and other areas in its deliberations regarding the university FH. We urge that they adhere to or approximate AAUP guidelines as much as possible.

3. Develop a series of lectures/panel discussions on issues of academic freedom and shared governance to create a real dialogue within and outside the university. This is essential in order to restore faith in the present-and future-policies and procedures.

4. Develop and build on a university culture of true academic freedom, with policies and procedures that are fair and just to each individual. This culture should be led and nurtured by the university and its various constituents, but it should never be used to silence unpopular or uncomfortable views, or the people who espouse them.

References:

AAUP Policies and Statements  (http://www.aaup.org)

DePaul University Faculty Handbook  (http://www.depaul.edu/faculty/facultyHandbook.asp)

College of LAS “College Promotion and Tenure Procedures”

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