Karriär för kvalitet

Foundation and RationaleUT ...................................

Historical TU

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Fundamental Elements of the Tenure

SystemUT .........................................................................

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Policy BasesUT .........................................................

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Institutional and Legal FrameworkUT...............................

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Map of Higher EducationUT...................................

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Legal Framework for Faculty EmploymentUT ......

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Probation TU

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of ProbationUT ....................................................

Period TU

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Standards TU

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Evaluation TU

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-Tenure Review UT ...............................................................

Post TU

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Purpose TU

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Frequency TU

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Consequences TU

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Erosion of TenureUT ..........................................................

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6 TU

Future of Tenure in the United StatesUT..........................

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1 Historical Foundation and Rationale

In 1940, the leading national association of college and university teachers, the American Association of University Professors (AAUP), and the leading national association of liberal arts colle- ges, the Association of American Colleges (AAC), adopted a joint

Statement of Principles on Academic Freedom and Tenure. The 1940

Statement established a national norm widely recognized in Ameri- can higher education: it is currently endorsed by over two hundred educational organizations and disciplinary societies and has been adopted, by reference or by incorporation of its provisions, in the policies of numerous institutions. The 1940 Statement lays out the bases for and the basic elements that define academic tenure.TPF1FPT

1.1The Fundamental Elements of the Tenure System

The 1940 Statement provides:

After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their services should be terminated only for adequate cause, except in the case of retirement for age,TPF2FPT or under extraordinary circumstances because of financial exigencies.

“Adequate cause” concerns personal conduct that renders the faculty member unfit for office e.g., incompetence, neglect of duty, or serious misconduct such as plagiarism or sexual harassment. “Financial exigency” is a condition that threatens the institution’s continued existence or very ability to function and that cannot be

1TP PT 1940 Statement on Principles on Academic Freedom and Tenure, AAUP POLICY

DOCUMENTS AND REPORTS 3 (10th ed. 2006). See generally Walter Metzger, The 1940 Statement of Principles on Academic Freedom and Tenure, in FREEDOM AND TENURE IN THE

ACADEMY 3 (William Van Alstyne ed., 1993); Walter Metzger, Academic Tenure in America: A Historical Essay, in Commission on Higher Education Tenure in Higher Education, FACULTY TENURE 93 (1973). The leading contemporary critic of tenure has questioned whether, given the diversity in standards and procedures, one can profitably speak of a “tenure system” at all. Richard Chait, Gleanings, in THE QUESTIONS OF TENURE 309, 309– 10 (Richard Chait ed., 2002) [hereinafter Chait]. Howsoever institutions might vary in the length of the probationary period or in standards of evaluation, see text accompanying notes 12–20, infra, the basic elements outlined below are a constant across the broad range of institutions.

2TP PT Mandatory age-based retirement was abolished by federal law for tenured professors effective in 1986. As a result, the 1940 Statement’s reference to “retirement for age” as a permissible ground of termination is no longer effective. For institutional response, see RECRUITMENT, RETENTION AND RETIREMENT IN HIGHER EDUCATION (Robert Clark & Jennifer Ma eds., 2005).

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alleviated by means less drastic than the termination of tenured faculty – as a genuine last resort.TPF3FPT

The probationary period, commencing with a full time appo- intment irrespective of academic rank or title, was not to exceed seven years. Termination thereafter would be allowable only on the grounds specified, subject to academic due process, i.e., to a hea- ring on contested issues before a duly selected committee of the faculty. The tenure decision has sometimes been called an “up or out” decision as institutions almost universally have a series of aca- demic ranks –these days, from assistant professor to associate pro- fessor to professor – and as the tenure decision is often pegged to a promotion in academic rank, commonly from assistant to associate professor. But, under the 1940 Statement, it is more accurate to speak of an “in or out” decision; it is a matter of institutional cho- ice whether to attach a promotional consequence.

Tenure had been a source of serious contention for several decades leading up to the 1940 Statement, and remains so in certain quarters still, in part because of the treatment it accords the profes- soriate as distinguished from almost all other employments in the United States. In the second half of the nineteenth century, Ame- rican law married the British law of master and servant to a pre- sumption, a default rule, that unless agreed to the contrary emplo- yment was at-will: it was a hiring from moment to moment termi- nable by either the employer or the employee at any time and for any reason, even a morally repugnant reason, or no reason at all. This is still the default rule today, though now shot through with statutory and judge-made exceptions.

Academic employment in 1940 was often on the basis of a sta- ted term – customarily for an academic year, renewable from year to year thereafter – or for an “indefinite” term, an expectancy of continuance to which, legally, the default rule would nevertheless apply. However, some institutions appointed faculty for thirty-day renewable terms, as Texas Christian University did in 1931TPF4FPT; in some, all academic appointments were held expressly on an at-will basis, as at the Ohio State University in 1933TPF5FPT. But the notion that after the completion of a period of probation the faculty member should have the legal assurance of permanence – subject to dismiss-

3TP PT See, e.g., Special Committee Report, Hurricane Katrina and New Orleans Universities, 93 ACADEME 59 (May–June 2007).

4TP PT Academic Freedom and Tenure: Texas Christian University, 17 AAUP BULL. 443 (1931). 5TP PT Academic Freedom and Tenure at the Ohio State University, 19 AAUP BULL. 472 (1933).

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sal only for just cause or other permissible ground – novel at the time, and unusual still for most employees in the United States, became generally accepted.

1.2The Policy Bases

The 1940 Statement asserts that

Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obliga- tions to its students and to society.

The chief negotiator for the AAC, Henry Wriston, President of Brown University, was initially unsympathetic to the idea of tenure, reflecting the common attitude of chief administrative offi- cers at the time. But, in examining his own institution’s practices, he discovered that a number of instructors were carried over from year to year with little real assessment of their performance and for whom, by virtue of their length of service, it would be inhumane to terminate absent incompetence or gross neglect of duty. He came to the realization, in other words, that the University had all the negative consequences of tenure de facto without the benefit of the kind of careful sifting and winnowing that a real system of tenure would be likely to impose. He became a forceful advocate for tenure on the ground that it was more likely to advance faculty quality than a series of indefinitely renewable periodic contracts.

In other words, in addition to the two grounds specifically laid out in the 1940 Statement there was a strong prudential institutio- nal argument for tenure. The renewal of a faculty member’s appo- intment for a one, two, or three year period was, relatively, a “low stakes” decision. But after several such renewals, after, that is, nine or twelve years of service, an institution would be unlikely to ter- minate the appointment of an amiable colleague who’d maintained classroom competence – and a network of friends. A decision to award a contract of permanence was a “high stakes” decision with a commensurately higher standard of care. To be sure, some whose real promise of achievement was not adequately reflected in their professional profiles at the time of consideration might be lost to the institution whilst others whose demonstrably high promise

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might never be attained would be retained. But, on balance, the idea of the tenure decision as a critical component for the mainte- nance of academic quality provided strong institutional support for a system grounded, from the professorial perspective, as an essen- tial buttress for the protection of academic freedom.TPF6FPT

2 The Institutional and Legal Framework

2.1The Map of Higher Education

In 1931–32, shortly before the 1940 Statement was negotiated, a snapshot of higher education would reveal that there were 931 col- leges and universities in the United States – 72 % (669) privately controlled, 28 % public, i.e., state and municipal institutions. The vast majority were small. The composition of higher education at that time is set out below in Table 1.

Table 1. Colleges by Student Body Size and Size of Faculty 1931–1932

Student	No. of inst.	% of total	No. of faculty	% of total	Enrollment	% of total

Size:
I (1–499)	514	55.2	13,348	14.8	129,496	12.6
II (500–999)	204	21.9	12,065	13.4	141,232	13.8
III (1,000–
2,499)	131	14.1	19,262	21.3	208,288	20.3
IV (2,500 up)	82	8.8	45,557	50.5	545,723	53.3
Total	931	100.0	90,232	100.0	1,024,739	100.0

Source: MALCOM WILLEY ET AL., DEPRESSION RECOVERY AND HIGHER EDUCATION 10 (1937).

The picture today is far more complex. In 2005, there were 4,387 institutions of higher education. Putting aside for-profit degree- granting institutions and free-standing specialized schools of art,

6TP PT It has been argued that one could provide for a procedure to vindicate alleged violations of academic freedom without affording tenure. C. Peter Magrath, Eliminating Tenure Without Destroying Academic Freedom, THE CHRONICLE OF HIGHER EDUCATION, Feb. 28, 1997, at A-60. One of the founders of the American tenure system, Professor Arthur O. Lovejoy of Johns Hopkins University, criticized just such a proposal in 1916. A.O. Lovejoy, Letter to the Editor, THE NATION, Dec. 14, 1916, at 561. “The motive for a dismissal,” he wrote, “and the official reason given for it, are frequently two very different things.”

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technology, medicine, and the like, the institutional display is shown in Table 2.

Table 2. Institutional Composition of U.S. Higher Education (2005)

Institution	Number	Approximate Total	% of Total Student
		Enrollment	Enrollment
		(in millions)

Research Universities	283	4,900,000	28%
M.A.-Granting Uni-
versities or Colleges	689	3,960,000	22.6%
B.A.-Granting Colle-
ges	734	1,300,000	7.5%
Associate (2 yr.)
College	1195	6,270,000	36%

Source: The Chronicle of Higher Education, Almanac 2006–07, p. 35 (Aug. 25, 2006).

The distribution of full-time faculty within this institutional uni- verse (2003–2004) is shown in Table 3.

Table 3.	Full-Time Faculty (2003–2004)

		All		Men		Women

	Number	Proportion	Number	Proportion	Number	Proportion
		with tenure		with tenure		with tenure

Public
institutions
All	387,350	53.0%	235,548	58.6%	151,802	44.2%
4-year	314,842	50.2	199,628	56.9	115,214	38.5
2-year	72,508	65.2	35,920	68.3	36,588	62.2

Private
institutions
All	173,581	44.7%	109,499	50.3%	64,082	35.0%
4-year	172,865	44.6	109,137	50.3	63,728	34.9
2-year	716	61.5	362	60.2	354	62.7

All institu-
tions
All	560,931	50.4%	345,047	56.0%	215,884	41.5%
4-year	487,707	48,2	308,765	54.6	178,942	37.2
2-year	73,224	65.2	36,282	68.2	36,942	62.2

Source: The Chronicle of Higher Education, Almanac 2006–2007, p. 27 (Aug. 25, 2006).

Note: Figures include only those full-time faculty members employed at institutions that have a tenure system. About 89 percent of faculty members work at such institutions.

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2.2The Legal Framework for Faculty Employment

Faculty are employed under contracts of employment whether in a public or private institution. In both settings the terms of the con- tract regarding probationary status – the timing and procedures for evaluation and appeal – and the content of tenure are rarely set out in detail in a document titled a “contract.” Most commonly, and even if a form contract is issued, it or a simple notice of appoint- ment either expressly or impliedly incorporates the institution’s rules that govern such matters. These rules, found in college or university statutes, by-laws, codes, regulations, or merely contai- ned in a Faculty Handbook or the like, are generally considered to be of contractual status and are ordinarily enforceable on that basis.

However, two other forms of regulation may come into play. First, public employers are controlled by the Fourteenth Amend- ment to the United States Constitution. It forbids the states or their political subdivisions from depriving any person of life, liberty, or property without due process of law. The United States Supreme Court held that academic tenure constitutes a form of “property” for constitutional purposes.TPF7FPT As a constitutional matter, the minima of constitutional due process – adequate notice and the opportunity to be heard “at a meaningful time and in a meaningful manner” before a constitutionally neutral adjudicator or adjudica- tive body – must be observed in order to dismiss a tenured profes- sor at a public instiution. Note that absent tenure the constitution does not require that any process be due for the termination of a publicly employed professor; only if tenure is accorded must the institution’s rules governing the termination of the appointment meet constitutional procedural requirements.

Second, starting in the 1960’s the states started to enact legisla- tion extending collective bargaining rights to all or some of their employees usually including the faculties of publicly operated institutions of higher education.TPF8FPT Consequently, faculty members may be governed by a collective bargaining agreement that either provides for or modifies the rules governing probation and tenure or submits adherence to the rules to arbitration in lieu of faculty

7TP PT Board of Regents v. Roth, 408 U.S. 564 (1972).

8TP PT See generally, FACULTY UNIONS AND COLLECTIVE BARGAINING (E.D. Duryea et al. eds., 1973).

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committee adjudication.TPF9FPT Currently, about half the states have enacted such laws and, as Table 4 will show, collective bargaining has become a major feature in public sector higher education.

In 1970, the National Labor Relations Board extended the fede- ral collective bargaining law, applicable to private employers, to the faculties of private colleges and universities. But a decade later, in the much-criticized Yeshiva decision, the United States Supreme Court held that a faculty that had significant recommendatory authority in matters of educational policy was of “managerial” sta- tus and so exempt from the Act.TPF10FPT The effect was to blunt the availability of collective bargaining for the faculties of any but the most autocratic or benighted institutions.

The most recent figures for the coverage of faculty and instruc- tional staff collective bargaining agreements are for 1998. These are set out in Table 4. It should be noted that the American system of collective bargaining contemplates the representation of persons in a “bargaining unit.” The composition of these bargaining units varies according to state law; they may be exclusively of tenure track faculty, of all instructional personnel, or, sometimes, even of all professional employees. Thus the data here, dealing with “instructional staff,” provides only a rough snapshot.

9TP PT On the current state of professorial collective bargaining across a spectrum of issues including tenure and post-tenure review, see ACADEMIC COLLECTIVE BARGAINING (Ernst Benjamin & Michael Mauer eds., 2006).

10TP PT NLRB v. Yeshiva University, 444 U.S. 672 (1980).

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Table 4. Full-Time Faculty	And Instructional Staff Coverage by Collective
11
Bargaining (1998)TPF	FPT

Institution	% Included in a Bargaining Unit

Doctoral
- Public	37.1%
- Private	16.8
4-Year & Comprehensive
- Public	55.7
- Private	15.3
2-Year
- Public	66.8
- Private	11.3
Total	41.4

Source: United States. Dept. of Educ. Natl. Center for Educ. Statistics, National Study of Post- secondary Faculty (DAS), NSOPF: 99. CD-Rom. Washington: US Dept. of Educ., 2001.

3 Probation

3.1Period of Probation

The professoriate readily agreed that a period of probation could be required antecedent to the tenure commitment; but, consistent with the purposes of tenure, that it ought to be reasonably short, not to exceed seven years. A survey of 217 institutions conducted in 1999 (the Faculty Appointment Policy Archive) (FAPA) indi- cated that 54 % set the maximum probationary period at seven years, 28 % at six years, 6 % at five.TPF12FPT Seventy-seven percent of the research universities surveyed reported a probationary period longer than seven years; and a handful of research universities have traditionally had probationary periods that significantly exceed that limit. Yale University, for example, has long had a probationary period of ten years, but a committee of Yale’s Faculty of Arts and Sciences recently recommended a reduction to nine. The commit- tee explained,

11TP PT Note that these data combine faculty with “instructional staff,” non-faculty (and usually non-tenure eligible) personnel who report that more than 50% of their work time is spent in “instructional activities.” These may not be included in bargaining units of faculty; and, indeed, it is quite possible for those instructional personnel to be included in a separate bargaining unit while the faculty has declined union representation. In other words, it is quite possible that these data overestimate the actual extent of collective bargaining by tenure-track and tenured faculty.

12TP PT Cathy Trower, What is Current Policy?, in CHAIT, supra note 1, at 32, 37.

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The ten-year limit on non-tenured faculty appointments, later called Yale’s “tenure clock,” but first mentioned at Yale in the 1930s as a way of limiting so many long-standing non-tenured faculty appointments, may actually slow scholarship and research. It often pushes tenure decisions to a decade after the initial academic appointment and places unsuccessful candidates out of synchrony with the job market in most fields. Many departments find themselves at a competitive disadvan- tage in hiring non-tenured faculty because other high-ranking depart- ments can promise tenure decisions earlier and without reference to resource constraints.TPF13FPT

The Yale committee also noted that the time actually taken to secure tenure varied considerably by discipline: Yale’s data indicate that those in the physical sciences who are less promising leave ear- lier in the tenure process whereas the reverse is true for the biolo- gical sciences.TPF14FPT The significance of the rate of successful achieve- ment of tenure will be discussed in the next section.

A problem accompanying the effort to secure a greater repre- sentation of women in the senior academic ranks has been the impact of a firm maximum period of probation on the ability of women successfully to manifest their promise of research produc- tivity whilst balancing their desire for children. Inasmuch as the obligations of child rearing still fall disproportionately on women the effect of an inflexible rule may encourage female faculty to exit the profession in child bearing years, to accept a reduced non- tenure track status possibly by being placed on a part-time basis, to seek academic positions at less research-centered institutions, or to forego child bearing altogether. The AAUP has recommended a modest suspension or “tolling” of the tenure clock for both male

13TP PT Yale University Report of the Faculty of Arts and Sciences Tenure and Appointments Policy Committee 7 (Feb. 5, 2007). The proposed procedure is this: an initial appointment as assistant professor for four years with a comprehensive review in the third year (coupled to eligibility for a paid research leave); for the successful candidate, appointment to associate professor for a term with eligibility for an additional research leave (though continuance as assistant professor for that period would be allowed) and, in either case, a tenure review in the eighth year.

14TP PT Time in Years on the Tenure Track for Faculty of Arts & Sciences (FAS) YaleTT T

	Humanities	Social Sciences	Physical	Biological	Total FAS
			Sciences	Sciences
Mean yrs non-
tenured (all)	6.3	6.9	6.2	8.1	6.6
Mean yrs to tenure
at Yale	7.1	7.0	7.4	7.5	7.3
Mean yrs to
departure from
Yale	6.2	6.9	5.8	8.8	6.4

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and female faculty for child care and other family responsibilities. According to the 1999 FAPA survey, however, only 22 % of the respondents allow probationary faculty to “stop the clock for childbirth in adoption or to care for an ill or disabled child, spouse, or parent.”TPF15FPT Half of these were research universities, however, per- haps reflecting the special relationship between research and tenure at that level of institution and these institutions’ desire to accom- modate female faculty. Of these policies, most allow an extension of one year; 13 % allow for two years’ extension.

3.2Standards

Archetypically, institutional rules will set out the criteria for the award of tenure, usually a mixture of teaching, research, and service with differing degrees of emphasis and elaboration varying form institution to institution.TPF16FPT Accordingly, the rate of the achieve- ment of tenure can vary considerably from institution to institu- tion. Some of the Ivy League institutions are very parsimonious in tenuring their probationers. At Yale, for example, only about 19 % of non-tenured faculty achieve tenure; but, at the other extreme, a few institutions tenure virtually every assistant professor. In other words, there is a spectrum in institutional practice running from the handful of Ivy League institutions that match their probatio- ners – after an unusually lengthy period of probation – against the pool of potential lateral appointees worldwide to the handful for whom tenure is virtually assured upon appointment. As one obser- ver put it, some institutions view tenure as “a rightful expectation for satisfactory performance” whilst others view it as “an uncom- mon reward for extraordinary achievement and potential.”TPF17FPT

However, the observation is not so much inaccurate as mislea- ding in its emphasis upon the ends of what is a continuum of institutional practice The number of four-year institutions that award tenure as a matter of routine is quite smallTPF18FPT as are those that

15TP PT Trower, supra note 12, at 38.

16TP PT Some institutions have added an evaluation of the candidate’s “collegiality” into the mix; but the propriety of that consideration is in controversy.

17TP PT CHAIT, supra note 1, at 312.

18TP PT Chait relies on the fact that 26 four-year institutions reported on the AAUP’s salary survey for the year 2000 that more than 60 % of their assistant professors have been awarded tenure. “While not a direct measure of selectivity, such high tenure ratios signal a lack of stringent standards and suggest that the threshold for tenure has been set at minimally acceptable, rather than superior, levels of performance.” CHAIT, id. at 312. The sample

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accord it as a kind of honorific for “extraordinary achievement.” For most, tenure is granted neither as an honorific nor as a matter of routine but because the probationer’s record gives adequate assurance of future performance consistent with institutional stan- dards which, obviously, will vary according to the nature of the institution.

Nor does a high rate at which incoming tenure-track faculty are awarded tenure necessarily signal a lack of stringent standards. In 1995, the University of Illinois, a representative large public rese- arch university, undertook an intensive year-long examination of the administration of its tenure system which it took to be “fairly typical in much if not most of higher education.”TPF19FPT It found that at the flagship Champaign-Urbana campus (UIUC), of those assis- tant professors initially appointed in 1989, 56.6 % eventually recei- ved tenure after six years (the seventh being a terminal year in the event of a denial of tenure), 26.5 % were separated before reaching a tenure decision, 10.8 % were “rolled back” on the tenure clock, and 4.8 % were given terminal appointments. The separation rate, i.e., the decision to leave prior to tenure consideration, could be due to negative evaluation or “counseling out” (discussed in the next section), the desire to pursue other career choices, or, for the most stellar, to acceptance of an offer by a higher-rated institution. Thus a tenure rate of about 60 % was not taken by the study as any indication of lack of stringency especially given the selectivity of the hiring process: In 1992, UIUC received 2,700 applications for tenure and tenure-track appointments: 221 were finalists in the process, 38 appointments were actually made. The figures for 1993 were 8,169 applicants, 253 finalists, and 56 appointments; for 1994, 4,712 applicants, 194 finalists, and 37 appointments. In sum, if a university were selecting the most promising candidates it is to be expected that, more likely than not, they will give adequate evi- dence of fulfilling that promise at the conclusion of the probatio- nary period.

from which these 26 institutions were drawn consisted of 1,553 four-year institutions. This means, assuming the 60 % cut off is significant and that uncoupling tenure from rank is meaningful, that for 1.7 % of four-year institutions tenure may not be a high stakes decision. 19TP PT Report of the University of Illinois Seminar on Tenure 44 (December, 1996).

The full text and statistical analyses can be found at www.vpaa.uillinois.edu/reports_retreats/tenure_seminar.pdf.

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3.3Evaluation

Institutional rules commonly set out the standards and procedures for evaluation, usually in considerable detail.TPF20FPT According to the FAPA survey, of the institutions supplying these rules 47 % made provision for an annual review and 30 % for a review midpoint in the probationary period:

[S]ome institutions conduct both annual reviews and an in-depth eva- luation at the midpoint. These reviews afford opportunities to discuss the faculty member’s performance, to review the needs and priorities of the department and college, and to counsel marginal candidates to leave prior to a negative tenure decision.TPF21FPT

Consequently, prior to the final evaluation for tenure, the “in or out” decision, the probationer should have been subject to at least one in depth review of her performance and so of her promise eventually of achieving tenure. The pre-tenure review process inva- riably involves the chair or head of the probationer’s department, often a faculty committee and, in some institutions, a senior colle- ague designated as a “mentor” or the like to give guidance on tea- ching and research direction. If it appears to the department that the probationer is not making satisfactory progress, or if there is other reason to believe there is a lack of fit between the probatio- ner and the department, the probationer may be counseled to that effect – suggesting that she might be more successful at another institution or even in another career choice. In cases where the lack of progress is palpable and unlikely to be remedied, the probationer may accordingly be given notice of non-reappointment at the conclusion of the current term of service, i.e., before the expiration of the full probationary period. In that sense, being on the tenure track does not guaranty that the probationer has an entitlement to be considered for tenure.

The process of final evaluation expressly for tenure usually pro- ceeds on several levels: the academic department, the school in which it is housed, often an institution-wide body, and a final administrative decision. At research universities letters of evalua- tion from experts in the candidate’s field from other universities are invariably part of the process. This aspect of the process was

20TP PT See generally, AMERICAN COUNCIL ON EDUCATION, GOOD PRACTICE IN TENURE

EVALUATION: ADVICE FOR TENURED FACULTY, DEPARTMENT CHAIRS, AND ACADEMIC ADMINISTRATIONS (2000).

21TP PT Trower, supra note 12, at 39.

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commented on by the Yale faculty committee. The committee advised that instead of using the tenure process as a vehicle for an open search for the position in which the probationer would be considered as a potential candidate to be measured against all other potential candidates, i.e., against potential lateral hires, the proba- tioner should be judged on his or her own merits. It further recommended that outside experts be given the probationer’s cur- riculum vita, selected publications, and a statement of the candi- date’s research plans, and be asked whether he or she would recommend the candidate for tenure at Yale, bearing in mind com- parisons with other figures in the field. The committee observed:

By following the general practice throughout virtually all of American higher education, we should improve the quality of the evaluations we receive. Adopting this more familiar and generally accepted approach should lead faculty outside Yale to a better understanding of our pro- cedures. It also should increase the confidence of Yale’s non-tenured faculty in the evaluation process and thereby enhance our ability to recruit outstanding young faculty members for initial appointments.TPF22FPT

The unsuccessful candidate is given terminal notice, customarily of one year to synchronize with the periodicity of the academic labor market. Procedures for appeal are usually available as a matter of institutional regulation or negotiated under collective agreements. These procedures customarily assess procedural compliance and the fairness of the consideration; rarely if ever are these non-disci- plinary review processes expected to reconsider the merits of the decision. A successful appeal would thus ordinarily result in a reconsideration, often by the same body or bodies that reached the challenged, negative decision.

4 Post-Tenure Review

In 1982, a group of college and university presidents recommended the development of systems of “post-tenure review” – this largely in response to legislative challenges to the tenure system and to calls for greater professorial “accountability.”TPF23FPT The professoriate responded that tenured faculty are subject to continuous evalua-

22TP PT Yale Report, supra note 13, at 12.

23TP PT See generally CHRISTINE LICATA, POST-TENURE FACULTY EVALUATION: THREAT OR OPPORTUNITY? ASHE-ERIC HIGHER EDUCATION REPORT NO. 1 (1986).

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tion, though more commonly for salary increases, the award of research funds, leaves, and the like than for the detection of sloth or dereliction of duty; in point of fact, a great many institutions treat annual salary increases on a merit basis which, if consistently negative over time, can operate cumulatively as a sanction on the under-performing. The profession was concerned that the imposi- tion of seemingly tenure-like periodic evaluations would weaken the significance of the initial tenure decision: holding open the possibility that a marginal candidate could be awarded tenure on the assumption that a misjudgment could readily be corrected later on might render tenure a “low stakes” decision contrary to its gate- keeping function; and the substitution of periodic evaluation for a dismissal for cause would deny the instructor due process and so weaken the protection of academic freedom.TPF24FPT

Despite these cautions, systems of post-tenure review have been adopted, though more in public than in private institutions, reflec- tive of institutional reaction to the demand for greater “accounta- bility” in the public sector. The content of these vary considerably, however, in purpose, frequency, and consequence.

4.1Purpose

Post-tenure reviews can be conducted for “formative” or “summa- tive” purposes. The former is geared to detect and remediate underperforming faculty, but sometimes has the ancillary purpose or effect of rewarding those faculty whose achievements have not adequately been recognized. The latter is intended to initiate a pro- cess of development failing which to impose a sanction up to and possibility including dismissal. About half the institutions respon- ding to the FAPA survey had instituted systems of post-tenure review, 55 % of which were in the public sector: 25 % of the insti- tutions reporting the adoption of post-tenure review did so for formative purposes, 69 % for summative purposes, 6 % for both.TPF25FPT A survey conducted by the Association of American Universi- ties(AAU), the association of the leading research universities, found that 28 of 34 of its responding member public universities and 13 of 17 of its responding member private universities had

24TP PT Post-Tenure Review: An AAUP Response, in AAUP POLICY DOCUMENTS AND REPORTS

60 (10th ed. 2006).

25TP PT Trower, supra note 12, at 55.

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adopted such systems: half for both formative and summative pur- poses; four for purely formative purposes; five for purely summa- tive purposes; and three referring only to the need to assure “external accountability.”TPF26FPT

4.2Frequency

Of the FAPA sample, 89 % of reviews were conducted on a perio- dic cycle, a plurality conducted every seven years. Forty-two per- cent conducted reviews triggered by poor performance as revealed by routine annual faculty reviews. In the AAU survey, 29 % were conducted at least once every five years; 24 % were triggered by unsatisfactory annual reviews.

4.3Consequences

Of the FAPA sample, 43 % used faculty development plans as part of the outcome of the process: faculty are to be counseled and given, on average, one or two years to improve. A third of these institutions peg additional funds to aid in the faculty member’s development. Of that sample, 38 % anticipate sanctions for pro- longed, unremedied unsatisfactory performance including dismiss- sal. The AAU sample indicates a stronger formative purpose: only three of forty-one institutional policies mention the possibility of dismissal. The AAU Report observed that post-tenure review (PTR)

…can be quite costly in faculty and staff time, money, and other institutional resources. From a cost/benefit standpoint, the question becomes whether the added costs of PTR produce benefits beyond those resulting from annual performance reviews and other evaluation procedures that are sufficient to justify those costs. For many of the university respondents whose institutions do not have PTR policies, that cost/benefit analysis does not warrant adoption of PTR.TPF27FPT

The consequences of unremedied deficiencies detected by a post- tenure review process present serious questions. Tenure allows a dismissal only for adequate cause and requires a hearing on the faculty member’s continued fitness for office. In that case, burden

26TP PT ASSOCIATION OF AMERICAN UNIVERSITIES, POST-TENURE REVIEW 2 (April 10, 2001).

27TP PT Id. at 3.

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rests upon the administration to prove the faculty member’s unfit- ness: a negative evaluation per se could not itself be “cause” to dis- miss. As it has been pointed out,

Were a system of post-tenure review devised to make a negative evalu- ation “cause” for dismissal, it would, in practical effect, substitute periodic evaluation for a dismissal hearing and would be indistingui- shable from the abolition of tenure and the adoption in its stead of a system of periodic appointments.TPF28FPT

But at least one institution has taken just that approach, resulting in the institution’s public censure.TPF29FPT

5 The Erosion of Tenure

A widely discussed phenomenon over the past two decades has been the rise of what is loosely called the “contingent faculty.” The phenomenon refers to the diminution of the tenured and tenure- track cohort relative to a cluster of other forms of academic employment, notably part-time and full-time but non-tenure-track instructors. The phenomenon has been explained by institutional desire to have greater flexibility in the allocation of instructional resources and to constrain cost, especially as part-time teachers are less costly than full-time. Table 6 sets out the display of full-time to part-time faculty from 1984–2003.

28TP PT Matthew Finkin, The Tenure System, in THE ACADEMIC’S HANDBOOK 155, 165 (A. Leigh Deneef & Craufurd Goodwin eds., 3d ed. 2007).

29TP PT I.e., Virginia State University, Report of Committee A 2004–2005, 91 ACADEME 46, 47 (Sept.–Oct. 2005). The facts are set out in Academic Freedom and Tenure: Virginia State University, 91 ACADEME 47 (May/June 2005).

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Table 5. Trend in Full-Time/Part-Time Faculty Employment 1989–2003

Employment Status

Year	Total	Full-time	Part-time
1989	824,000	64%	36%
1991	826,000	65	35
1993	915,000	60	40
1995	932,000	59	41
1997	990,000	57	43
1999	1,028,000	57	43
2001	1,113,000	56	44
2003	1,175,000	54	46

Source: The Chronicle of Higher Education, Almanac 2006–2007 at p. 27 (Aug. 25, 2007).

This gross display does not capture the relative use of part-time faculty at research universities vis-à-vis four-year masters’ and bachelor-granting institutions and two-year colleges. In a nutshell, the latter tend to be far more reliant or part-time instruction than the former where graduate student teaching assistants take up much of the bulk of instruction performed by part-timers in other settings.TPF30FPT

The rise in the use of part-time teachers has been accompanied by a less dramatic but noticeable shift in the use of full-time non- tenure track faculty who also tend to be less costly than tenure or tenure track faculty. This is displayed in Table 7.

30TP PT The College Board, in surveying those institutions with the largest numbers of degree- seeking undergraduates, has reported the percentage of courses (excluding laboratory, recitation or discussion groups) taught by full-time – and, conversely, part-time – faculty as well as the distribution of courses by class size. Data, EDUCATION LIFE, New York Times, July 27, 2007, § 4A at 8. In the main, two year institutions are much more reliant on part- time faculty than four year institutions. A sample of selected research universities is set out below:

Institution	% Full-time Faculty	Student-Faculty Ratio
New York University	36	11:1
Ohio State (Columbus)	74	13:1
Univ. of California at Los Angeles	75	17:1
Univ. of Colorado (Boulder)	67	17:1
University of Illinois (UIUC)	96	17:1
Univ. of Michigan (Ann Arbor)	80	17:1
Univ. of Texas (Austin)	90	18:1
Univ. of Wisconsin	79	13:1

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Table 6. Full time non-tenure track faculty / Total full time faculty

PUBLIC

(sample size)	89	91	93	95	97	a	a
(sample size)	89	91	93	95	97	99P	01P
						P	P

Research I (53)	0.245	0.253	0.263	0.286	0.332	0.356	0.375
Research II	0.183	0.171	0.179	0.192	0.233	0.244	0.274
(25)
Doctoral I (27)	0.160	0.193	0.191	0.202	0.213	0.235	0.237
Doctoral II (34)	0.176	0.176	0.200	0.206	0.212	0.226	0.240
Comprehensive	0.133	0.133	0.132	0.119	0.146	0.182	0.199
I (229)
Comprehensive	0.181	0.141	0.132	0.119	0.146	0.182	0.199
II (21)
Liberal Arts I	0.134	0.110	0.140	0.125	0.117	0.109	0.121
(4)
Liberal Arts II	0.213	0.211	0.187	0.202	0.195	0.223	0.242
(61)
Total	0.191	0.194	0.201	0.212	0.241	0.260	0.281

PRIVATE
(sample size)	89	91	93	95	97	a	a
(sample size)	89	91	93	95	97	99P	01P
						P	P

Research I (26)	0.312	0.358	0.344	0.335	0.410	0.432	0.434
Research II	0.173	0.165	0.186	0.180	0.196	0.222	0.230
(11)
Doctoral I (19)	0.233	0.193	0.231	0.212	0.234	0.256	0.274
Doctoral II (15)	0.132	0.122	0.153	0.137	0.144	0.159	0.191
Comprehensive	0.188	0.197	0.195	0.207	0.212	0.242	0.254
I (164)
Comprehensive	0.207	0.199	0.216	0.227	0.220	0.239	0.230
II (58)
Liberal Arts I	0.155	0.158	0.149	0.149	0.154	0.173	0.183
(149)
Liberal Arts II	0.287	0.294	0.297	0.292	0.286	0.321	0.328
(319)
Total	0.235	0.248	0.250	0.248	0.275	0.301	0.309

Source: Ronald Ehrenberg & Liang Zhang, The Changing Nature of Faculty Employment (April, 2004) Appendix I. a. Preliminary data.

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Of this, Ronald Ehrenberg and Liang Zhang observe:

Tenured and tenure-track faculty members are important to the aca- demic institution because in addition to teaching, they advise students about their courses of study and provide advice and letters of recom- mendation for postgraduate education and employment opportunities, and they conduct research, share governance responsibilities with the administration and the trustees and provide long-term stability to the institution.TPF31FPT

They also note that several reasons exist for the deployment of alternative forms of academic employment:

Full-time non tenure-track faculty may be important to the institution because, absent the responsibility to produce research, they can be assigned higher teaching loads and can specialize in teaching. Part- time non tenure-track faculty are valuable because in areas in which there is a large supply of people willing to work in such positions they provide the institution with an inventory of instructors who can be hired at the last moment to meet fluctuations in demand. In fields that deal directly with “real world” matters, such as engineering and business, full-time employed professionals willing to teach part-time also provide a type of specialized instruction that institutions might otherwise not be able to offer. In a world in which revenue sources are increasingly uncertain, both types of non tenure-track faculty mem- bers provide the academic institution with flexibility to meet rapid changes in its financial situation that the tenure system would other- wise constrain it from having.TPF32FPT

They note, however, that excessive reliance on atypical faculty can have negative consequences: a cohort of contingent faculty with scant institutional commitment – often with no offices to meet with students or time to counsel them – may not be as pedagogi- cally committed or effective as tenured faculty. (A follow-on study found that a higher use of part-time faculty correlated with lower graduation rates at M.A.-granting institutions.TPF33FPT) They note as well that the increased resort to contingent academic labor makes the profession less attractive and may well dampen the desire of Ame- rican college graduates to go on for Ph.D. study. It should be

31TP PT Ronald Ehrenberg & Liang Zhang, The Changing Nature of Faculty Employment 6 (April 2004).

32TP PT Id.

33TP PT Ronald Ehrenberg & Liang Zhang, Do Tenure and Tenure-Track Faculty Matter? (Dec. 13, 2004).

414

added that, to the profession, a cohort of faculty lacking tenure lacks full protection for the exercise of academic freedom.TPF34FPT

6 The Future of Tenure in the United States

More than forty years ago, the economist Fritz Machlup observed that “if tenure is to serve freedom, it is not enough to make tenure rules inviolable or enforceable, but it is also essential to make them cover as large a proportion of the faculty as is possible without jeo- pardizing other equally important objectives.”TPF35FPT No doubt curricu- lar flexibility and financial husbandry are objectives that an institu- tion is wise to take into account. Research staff may be appointed for fixed terms geared to a specific research project, even one that might transcend the maximum probationary period, but which nevertheless expire at the conclusion of the stated term – usually coterminous with the conclusion of the project or the expiration of the funds supporting it.TPF36FPT Moreover, term faculty appointments of a special nature – visiting professors, artists in residence, and many other special categories can be carried off the tenure track without necessary threatening the critical mass of tenured faculty that Machlup saw as necessary for the protection of academic freedom. Finally, a cohort of contingent or “just-in-time” part-time faculty who may be called in as curricular need dictates may be a wise approach to unforeseeable shifts in student interest. The question is one of balance.

At the time Machlup spoke, he estimated the cohort of the tenured faculty in universities at about 53 % of the full-time ranks, which he found far too low. As Table 3 shows, the percentage of

34TP PT A fuller account of the uses—and misuses—of full time non-tenure track appointments is provided in Report on Full-Time Non-Tenure Track Appointments, AAUP POLICY

DOCUMENTS AND REPORTS 85 (10th ed. 2006).

35TP PT Quoted in MATTHEW FINKIN, THE CASE FOR TENURE 125 (1996).

36TP PT In a 1969 report, an AAUP committee recommended that those full-time researchers who are given faculty status, i.e., a faculty rank such as “research professor,” should be on the tenure track. This in contrast to the Association’s categorical position that any full-time teacher irrespective of academic designation is to be considered tenure-eligible. Report of the Special Committee on Academic Personnel Ineligible for Tenure (1969), reprinted in AAUP POLICY DOCUMENTS AND REPORTS 43 (1984 ed.). Some institutions deal separately with research appointments. The University of Illinois’ rules, for example, allow for the appointment of “academic professionals” including, among others, Ph.D.s appointed for research projects without faculty rank and for a stated term. They are not tenure eligible. The terms of appointment of clinical medical faculty have also tended to depart from national norms for probation and tenure. Tenure in the Medical School, AAUP POLICY DOCUMENTS AND REPORTS 119 (10th ed. 2006).

415

full-time faculty with tenure today is lower (50.4 %) even as the use of part-time instructors relative to the full-time faculty has mushroomed. A number of University leaders, noting the dimi- nution in the tenure and tenure-track cohort, have noted as well the negative qualitative consequences for research and teaching and have drawn attention to the need to replenish these ranks, to red- ress the imbalance. Thus far, however, the statistics indicate little redirection. Unless the shift to contingency is reversed, the result, over time, will exacerbate the dual class faculty structure that has emerged in the United States.

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Karriärstrukturer vid universitet och högskolor i USA

Martin A. Wikström

ITPS Washington D.C.

Innehåll

Sammanfattning TU

UT ...............................................................................

419

UT .................................................................................

Inledning TU

420

akademiska karriärsystemet i USAUT................................

Det TU

420

från postdoc till forskare/lärareUT.......................

Karriärvägar TU

422

UT........................................................................

Postdoc TU

422

professor och tenure-trackUT ........................

Assistant TU

424

3 TU .3 UT En TU förskjutning mot kontraktstjänsterUT .....................

427

innebär tenure?UT ....................................................

.4 UT

Vad TU

429

förekomsten av tillfälliga kontraktUT ............................

.5 UT

Debatten TU

om tenure och den ökande

429

i debatten förekommande argument för

.6 UT

Några TU

och emot tenure-track systemUT ...................................

431

-tenure reviewUT......................................................

.7 UT

Post TU

433

3 TU .8 UT Är TU tenure-track viktigt för produktionen av

innovativa forskningsresultat, innovationer,

patent och spinn-off företag?UT ....................................

434

UT ...........................................................

Ålderspension/avgång TU

435

på högskolor som gått från tenuresystem till

Exempel TU

kontraktssystem eller omväntUT ...............................................

435

CollegeUT...............................................................

Scott TU

436

CollegeUT ........................................................

Rowlette TU

437

CollegeUT........................................................

Lakeview TU

438