sou · GVB398 · 2008-01-01 00:00:00 — 11TP PT Note that these data combine faculty with instructional staff, non-faculty (and usually non-tenure eligible) personnel who report that more than 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 , What is Current Policy?, in CHAIT, supra note 1, at 32, 37. The ten-year limit on non-tenured faculty appointments, later called Yales 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 also noted that the time actually taken to secure tenure varied considerably by discipline: Yales 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 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 Report of the Tenure and 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 () YaleTT T tenured (all) Mean yrs to tenure and female faculty for child care and other family responsibilities. According to the 1999 FAPA survey, however, only 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 to accom- modate female faculty. Of these policies, most allow an extension of one year; allow for two years extension. 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 institutions are very parsimonious in tenuring their probationers. At Yale, for example, only about 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 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 candidates 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 AAUPs salary survey for the year 2000 that more than 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. 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 probationers record gives adequate of future performance consistent with institutional stan- dards which, obviously, will vary according to the nature of the institution. does a high rate at which incoming tenure-track faculty are awarded tenure necessarily signal a lack of stringent standards. In 1995, the , 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 campus (UIUC), of those assis- tant professors initially appointed in 1989, eventually recei- ved tenure after six years (the seventh being a terminal year in the event of a denial of tenure), were separated before reaching a tenure decision, were rolled back on the tenure clock, and 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 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 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 cut off is significant and that uncoupling tenure from rank is meaningful, that for of four-year institutions tenure may not be a high stakes decision. 19TP PT Report of the on Tenure 44 (, 1996). The full text and statistical analyses can be found at . 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 made provision for an annual review and for a review midpoint in the probationary period: [S]ome institutions conduct both annual reviews and an in-depth at the midpoint. These reviews afford opportunities to discuss the faculty members 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 probationers department, often a faculty committee and, in some institutions, a senior colle- ague designated as a 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 candidates 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. commented on by the Yale faculty 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 probationers cur- riculum vita, selected publications, and a statement of the candi- dates 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. 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 Yales 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. 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 , POST-TENURE FACULTY EVALUATION: THREAT OR OPPORTUNITY? 1 (1986). 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- 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. 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, of which were in the public sector: of the insti- tutions reporting the adoption of post-tenure review did so for formative purposes, for summative purposes, for both.TPF25FPT A survey conducted by 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 : An AAUP Response, in AAUP POLICY DOCUMENTS AND REPORTS 60 (10th ed. 25TP PT Trower, supra note 12, at 55. 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 Of the FAPA sample, 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, were conducted at least once every five years; were triggered by unsatisfactory annual reviews. Of the FAPA sample, 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 members development. Of that sample, 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 members continued fitness for office. In that case, burden 26TP PT ASSOCIATION OF AMERICAN UNIVERSITIES, POST-TENURE REVIEW 2 (, 2001). 27TP PT Id. rests upon the administration to prove the faculty members unfit- ness: a negative evaluation per se could not itself be cause to dis- miss. As it has been pointed out, 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 institutions 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 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 , , in THE ACADEMICS HANDBOOK 155, 165 (A. Craufurd eds., 3d ed. 29TP PT I.e., , Report of Committee A 2004–2005, 91 ACADEME 46, 47 (Sept.–Oct. The facts are set out in Academic Freedom and Tenure: , 91 ACADEME 47 (/2005). Trend in Full-Time/Part-Time Faculty Employment 1989–2003 1,028,000 1,113,000 1,175,000 Source: , Almanac 2006–2007 at p. 25, 2007). This gross display does not capture the relative use of part-time faculty at research universities vis-à-vis four-year 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 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, , 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: Full time non-tenure track faculty / Total full time faculty (sample size) Research I (53) Doctoral I (27) Doctoral II (34) I (229) II (21) (sample size) Research I (26) Doctoral I (19) Doctoral II (15) I (164) II (58) Source: , The Changing Nature of Faculty Employment (April, 2004) Appendix I. a. Preliminary data. Of this, and 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 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 of Ame- rican college graduates to go on for Ph.D. 31TP PT , The Changing Nature of Faculty Employment 6 (). 32TP PT Id. 33TP PT , Do Tenure and Tenure-Track Faculty Matter? 13, 2004). 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 than forty years ago, the economist 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 , 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.