Post-Tenure Review and Just-Cause Termination in U.S. Public Institutions of Higher Learning: A Legalistic Examination

DOI10.1177/009102601204100107
Published date01 March 2012
Date01 March 2012
Subject MatterArticle
v36 n1 Spring 07 Post-Tenure Review
and Just-Cause
Termination In U.S.
Public Institutions of
Higher Learning: A
Legalistic Examination
By Robert K. Robinson, PhD, SPHR, Geralyn McClure Franklin, PhD
and Milorad M. Novicevic, PhD

This article examines the post-tenure review (PTR) policies in American
institutions of higher education as a means of identifying and
documenting faculty performance deficiencies from a legalistic
perspective. In addressing this issue, a brief review of PTR policies and
their history, as well as some of the misconceptions of the protection
provided by tenured status, is provided. The main focus of the article is
placed upon the just-cause termination of tenured faculty members,
paying particular attention to the due process protections afforded
such faculty. In conclusion, we examine the organizational costs of
failing to dispel the myths that tenured faculty are ‘termination-proof’
and invulnerable to any disciplinary sanctions.

There is right, there is wrong and there is the law. –Anonymous
Introduction
The perennial debate about post-tenure review (PTR) in U.S. public institu-
tions of higher education has surfaced again, as external constituents are
increasingly pressuring these institutions to design and implement more trans-
parent and consequential mechanisms that insure their accountability. Perhaps
no other topic engenders more controversy and debate among university fac-
ulty and administrators than whether faculty performance, following tenure,
Public Personnel Management Volume 41 No. 1 Spring 2012
127

should continue to be monitored with employment consequences. Much of
the controversy that permeates this debate revolves around misinformation
about the related faculty duties and entitlements. Not surprisingly, the diver-
gence of misinformed views has contributed to the formation of two opposing
“blocks”: PTR antagonists and PTR proponents.1
Many of PTR’s antagonists claim that PTR is little more than a veiled at-
tempt to overemphasize faculty duties and eliminate academic freedom by
eroding the protection afforded faculty through tenure.2 In contrast, most PTR
proponents, especially those outside of the academic community, envision
PTR as a means of bringing the “entitled” faculty to the realization that they are
not a law unto themselves, but rather are expected to conform to their em-
ployer’s performance expectations.3 The PTR advocates contend that once a
faculty member receives tenure, he or she often slides into semi-retirement.
This belief is supported by several studies that have indicated a decline in fac-
ulty research productivity after receiving tenure, which is not accompanied by
a commensurate increase in teaching prof‌iciency.4 Furthermore, the PTR pro-
tagonists are particularly targeting those faculty members who raise public ire
by printing or making socially or politically offensive pronouncements shielded
by the guise of tenure protections.5
The most salient example is the controversial case of a tenured profes-
sor, Ward Churchill, who drew mass media attention in 2006 for his highly
controversial justif‌ication of the deaths in the World Trade Center. The nega-
tive public reaction to this incident subsequently prompted the governor and
several members of the Colorado legislature to call for the tenured professor’s
ousting. The outrage further inf‌luenced the legislature to begin pursuing a
more rigorous post-tenure review process for all faculty members of public
universities in the state of Colorado.6 Specif‌ically, House Bill 06-1284 was intro-
duced in May 2006 to impose post-tenure review requirements throughout
the state. The University of Colorado’s response was to commission an inde-
pendent report which would eventually recommend 40 changes to the
university’s tenure policies, including wrapping up dismissals for cause within
six months or less.7 According to Dr. Mark Heckler, Provost of the University
of Colorado at Denver and Health Sciences Center, once implemented, this
recommended tenure policy was designed as the most rigorous and account-
able in the nation.8
As an epilogue, the Standing Committee on Research Misconduct of the
University of Colorado reported that Professor Churchill had engaged in seri-
ous research misconduct including two counts of plagiarism.9 For his
misconduct, Professor Churchill was terminated from employment at the Uni-
versity of Colorado in July 2007.10 Professor Churchill has since f‌iled a lawsuit
128
Public Personnel Management Volume 41 No. 1 Spring 2012

against his university claiming that the f‌iring was actually predicated on curtail-
ing his academic freedom rather than academic dishonesty.11
The broad ramif‌ication of this Colorado case, which attracted extensive
public attention, is that the very institution of tenure is now under siege across
the nation. Tenure is once again being presented outside of the academic com-
munity as an unassailable guarantee of lifetime employment. As a result, the
public increasingly, and to some extent erroneously, perceives tenure as a tal-
isman that makes its holder impervious to all institutional controls.
Unfortunately, because so much erroneous information regarding the nature
of tenure has been given the currency of fact, the terms “tenure” and “acade-
mic freedom” loom large as synonyms for abuse and sloth on university
campuses.
This misunderstanding of the real nature of tenure and academic free-
dom is not only common among external constituents of universities, but also
within faculty ranks. For example, a colleague of one of the authors was re-
cently verbally admonished for not holding his classes the prescribed “full”
period; he had made a habit of routinely letting his classes out f‌ifteen minutes
early. He was informed that the state’s board of regents had mandated the
number of contact hours in each course during any semester, and that he was
not in compliance with this “work rule.” This faculty member responded to his
reprimand by stating that “academic freedom” gave him the right to deter-
mine how often his classes would meet and for what duration. Several
colleagues of his agreed with this assertion as though it was chiseled in stone.
Evidently, these faculty members overlooked the fact that there is nothing in
the nature of “academic freedom” or “tenure” that permits a faculty member
not to perform his or her job.12 In fact, roughly two percent of tenured faculty
are terminated for cause each year.13
Just as employees in any other vocation, both tenured and nontenured
faculty may be disciplined up to and including termination for “just cause”
when they do not adequately perform their essential tasks, duties, and respon-
sibilities. However, tenured faculty members enjoy far greater due process
protection than do their nontenured colleagues, a point which will be ad-
dressed later in this article.
The purpose of this article is to examine the legalistic use of PTR. Specif‌i-
cally, the article outlines how PTR policy can be used as a means of identifying
and documenting performance def‌iciencies. An additional objective is to dis-
pel the myths that tenured faculty are immune to termination and invulnerable
to any disciplinary sanctions. A brief review of PTR policy and practice is pro-
vided with particular attention to the due process protections afforded those
tenured faculty members who are employed by public universities and col-
Public Personnel Management Volume 41 No. 1 Spring 2012
129

leges. The role of the PTR process in meeting due process obligations is expli-
cated, with special emphasis directed toward organizational costs of failing to
implement PTR and keeping poor performers on the faculty. Finally, minimal
due-process standards associated with tenured faculty terminations are
outlined.
Def‌inition of Post-Tenure Review and Its Brief
History
Post-tenure review is a “systematic, comprehensive process, separate from the
annual review, aimed specif‌ically at assessing performance and/or nurturing
faculty growth and development.”14 The National Commission of Higher Edu-
cation originally recommended the adoption of a post-tenure review process
in 1982.15 In the early 1990s, the American Association of University Professors
supported this recommendation.16 However, most state-mandated post-tenure
review policies were adopted in American graduate institutions only after
mandatory retirement was uncapped in 1994.17
The adoption of PTR policies has faced both internal and external barri-
ers. Outside academic institutions, the adoption of the PTR process has been
hampered by the “relative tension between public policy, accountability, and
institutional autonomy.”18 Inside institutions, the adoption process has been
hampered by the inherent conf‌lict arising from the administrators’ emphasis
on the accountability of the review against the faculty emphasis on the devel-
opmental orientation of the review process.19 Even when an agreement on the
emphasis of the PTR policy is achieved, it is often incongruent with its use in
practice. Specif‌ically, a number of issues associated with post-tenure review
use, such as faculty resistance, process ineff‌iciencies, and poor policy effec-
tiveness to enhance faculty accountability, often remain unresolved.20
The Use of PTR to Enhance Faculty
Accountability
Tenure does not insulate the individual faculty member from termination, de-
spite the popular misconception both inside and outside of the academic
community.21 Tenured faculty members have always been subject to termina-
tion, provided that it is for “just...

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