Legal Issues in Faculty Evaluation: Avoiding Problems

by Jon K. Dalager

From The Department Chair, Winter 2011 (21.3)

This first article in a two-part series on legal issues in faculty evaluation provides advice for chairs on how to properly conduct evaluations. The second article will focus on how to deal with problematic evaluations.

Evaluations have become a part of academia. We are evaluated by our students, by our department chairs, by our deans, and by RateYourProfessor.com. But when we become a department chair or dean, we must then evaluate our faculty. Because these evaluations involve people’s careers and their livelihood, as well as the quality of the department and institution, it is essential that the department chair be conscientious, informed, and prepared to do it well.

Procedures

Every institution has its own way of doing things, so the department chair or dean needs to find the procedures for evaluation. Don’t just wing it; that will lead to trouble. The procedures and criteria will typically be included in the faculty handbook or policy manual, or in the collective bargaining agreement. The chair should also examine the faculty member’s contract, which may list the rank, tenure status, and general responsibilities of the individual. There may be unique duties to consider, especially in the case of non-teaching faculty.

In most cases, however, the handbook or collective bargaining agreement will have incorporated the American Association of University Professors’ statements and recommendations. In any case, the chair is encouraged to review the 1940 Statement of Principles on Academic Freedom and Tenure, the 1958 Statement on Procedural Standards in Faculty Dismissal Proceedings, and the 1968 Recommended Institutional Regulations on Academic Freedom and Tenure.

Criteria

The department chair must be aware of the criteria for evaluation and the weight given to each factor. Small liberal arts colleges typically give more weight to teaching effectiveness, and large research institutions will emphasize research productivity, publications, and grants. From a general perspective, however, the criteria will include teaching, scholarship, and service. A fourth criterion, that of collegiality, has sometimes been applied, but it has also engendered more controversy. The AAUP has argued against collegiality as an evaluative factor, but the courts have generally supported an institution’s use of collegiality as a criterion. I would suggest that if lack of collegiality was the only reason for termination or denial of tenure, it may be closely examined by the court to determine whether it is a pretext for what may have been illegal considerations (i.e., discrimination).

The Chair’s Role

The faculty handbook, collective bargaining agreement, or the employment contract should describe the chair’s role in the evaluation of department faculty. It may range from providing only a cursory review of the individual faculty member’s self-evaluation to a thorough evaluation resulting in promotion, tenure, or termination. In either case, the chair’s input may have an impact on the final decision.

What Not To Do

Note that as an evaluator you are not protected by academic freedom. There are limits to what chairs can do and what they can consider as they evaluate department faculty. They are not allowed to discriminate against someone in a protected class, they may not retaliate for the exercise of a constitutionally protected right, and they may not engage in falsification of matters to justify a decision.

Discrimination. Because many universities are public institutions, and because many private institutions are recipients of state or federal money, they find themselves affected by a wide variety of laws and regulations. Specifically, state and federal officials have enacted several provisions concerning discrimination in employment. In addition, the courts have interpreted the U.S. Constitution and its amendments broadly to guarantee equal protection and due process in matters involving protected classes or involving fundamental rights such as employment. Department chairs (and other evaluators) are strongly encouraged to avoid considering any of these factors when conducting the performance evaluation:

• Race, color, or national origin
• Sex
• Religion (an exception exists for private, religious-based schools)
• Age (against those forty or older)
• Disability status
• Sexual preference (only in some states)

Retaliation. It is also improper to take action—that is, a poor evaluation or recommendation for denial of promotion or tenure—as retaliation for legally protected conduct. If a faculty member engages in constitutionally protected activities, such as free speech, practice of religion, or petitioning the government, it is a violation of his or her rights to adversely affect their interests because of that exercise. For example, if a faculty member campaigns for a presidential candidate, it is impermissible for the department chair to recommend a denial of tenure because of that activity. Similarly, a faculty member should not be punished for expressing views that are controversial or contrary to the views of the evaluator when such expression is within his or her First Amendment rights.

A retaliation claim may also arise from other protected activity, such as filing a discrimination or sexual harassment claim, reporting a work-related injury, or filing a grievance. The elements of a retaliation claim are that the employee engaged in a protected activity, the one accused of retaliation knew about the protected activity, the employee then suffered a negative consequence such as a poor evaluation, denial of tenure, or loss of work-related benefits, and there is a causal connection between the protected activity and the negative consequences suffered by the employee.

Similar to retaliation claims are actions that fall under state or federal “whistleblower” statutes. These laws protect employees who report illegal activities by their employer. Such whistleblower laws would protect a faculty member from being terminated or denied tenure because he or she reported fraudulent accounting practices, illegal recruiting methods, or any other illegal conduct.

In many states, the whistleblower laws are designed to protect state employees from reprisals from their public employers, but some analysts contend that such statutes may be interpreted to affect any private organization that contracts with the state or any subdivision. Other states, such as California and Connecticut, apply their laws to any employer, public or private.

Recommendations for Chairs

Evaluation of faculty by the department chair is typically a duty that is included in the terms and responsibilities of the position. When fulfilling that role chairs must not engage in any form of discrimination, nor must they retaliate against a faculty member for any protected activities. Finally, chairs must focus on the criteria set forth by the employment contract, the faculty handbook, or the collective bargaining agreement.

According to Good Practices in Tenure Evaluation, an AAUP publication, many faculty up for tenure were unaware of the requirements for tenure and weren’t aware of their deficiencies. The senior faculty and department chairs did not sufficiently explain the tenure requirements to their junior colleagues. The authors of Good Practices encouraged candor in evaluation at all stages and issued this warning: “An institution is vulnerable to challenge if it gives short shrift to any of the elements of candor. Particularly dangerous is the situation in which the institution has offered a candidate glowing evaluation for five years but then denies tenure on the basis of some inadequacy that no one ever communicated during the entire probationary period” (p. 20). Clearly, problems may be avoided with open communication between the chair and the faculty. However, not all department members will meet the standards for tenure or promotion. What can the chair do to avoid problems?

In truth, a candidate who has been denied tenure will not be very happy with the decision and may be willing to challenge that outcome by all means available to him or her. In that case, the chair’s best defense is good preparation. As an attorney, I have advised my clients to document everything and to retain all relevant items. I would also suggest that they write down the basis for the decision at the time the decision was made by either a letter to the employee or as a dated note to the file. For example, if it’s poor teaching, keep a record of the student evaluations, missed classes, or faulty syllabi, and make a note on how you considered it in your recommendation. If the main reason for recommending denial of tenure is a lack of research productivity, list the expectations for faculty, note the quantity and quality of the research, discuss the significance of the journals in which the candidate published (if any), and so on. I believe that documentation of the evidence supporting the decision, made at the time of the decision, is far more valuable and persuasive than trying to recollect reasons for the recommendation several years later.

On the other hand, some attorneys prefer that their clients do not keep any records or documentation at all in order to avoid the “smoking gun” that would reveal discriminatory intent or some other illegal reason for the denial of tenure. I disagree with that approach and encourage department chairs to do the right thing in the first place and to document that choice, thereby creating a solid defense.

If the standards and expectations are made known to all department faculty early on, and if the evaluation is conducted fairly, then in the case of a denial of promotion or tenure or a dismissal, the university will still get sued, but the case will be disposed of quickly and be less traumatic for the department chair.

This article is based on a presentation at the 27th annual Academic Chairpersons Conference, February 11–12, 2010, Orlando, Florida.

Jon K. Dalager, J.D., is dean of the School of Natural and Social Sciences at Wayne State College. Email: jodalag1@wsc.edu

References

American Association of University Professors. (2000). Good practice in tenure evaluation: Advice for tenured faculty, department chairs, and academic administrators. Washington, DC: Author.