How Post-Tenure Review Became Law: Inside the Legislative Process in Arizona and Texas
From the April 2000 AAHE Bulletin
The following article is based on "Post-Tenure Faculty Accountability: Shaping the Lines in the Sand," a plenary session at the 2000 AAHE Conference on Faculty Roles & Rewards, held February 36 in New Orleans.
During the past decade, external pressure has pushed the envelope on a number of higher education accountability initiatives. One of the fastest growing and most controversial of these initiatives is post-tenure faculty review. The surge in such review plans, particularly in the public sector, has been startling and the initial reaction of campuses has been mixed.
Consider the following: Fully 37 states now report they have established systemwide policies, have policies in place within selected state institutions, or currently are considering and/or developing such policies. Several regional accrediting bodies now refer to these policies in their accrediting requirements.
Christine M. Licata, AAHE senior associate, discusses these issues with Arizona Board of Regents member Judy Gignac and Texas State Representative Henry Cuellar, who both worked on post-tenure review legislation in their states.
Licata: What sparked the Arizona Board of Regents interest in post-tenure review?
Gignac: It started from many different converging events. The governor of Arizona, a very hard-nosed businessperson, appointed regents who were also hard-nosed businesspeople. These regents asked a lot of questions about credit, undergraduate degrees, the number of different programs that the universities had, the workload of the professors, and so on. The Board started a five-year review of faculty tenure and promotion policies. At the same time, the state legislature conducted a study on faculty productivity, which attempted to show that the productivity in Arizona was lower than in other states.
The first idea was to do away with tenure completely. We had a couple of regents who had a very difficult time understanding that a professor was not an employee, that higher education is a whole different kind of an animal.
They heard myths and anecdotes. One was about a professor who would be at the university for only a couple of hours and the rest of the time was home cutting his grass. It was that sort of thing that riled a number of regents up, until they said, "There is no reason for this. We can have academic freedom under a contractual basis. We dont need tenure."
We brought in a number of people to talk to the Board about some of the alternatives. The thing that turned the regents away from ending tenure altogether and toward implementing post-tenure review was when we were told that Arizona would not be able to recruit national or international marketplace faculty if we did away with tenure. That makes sense to a businessperson.
Licata: Henry, how did post-tenure review "play" in Texas?
Cuellar: In 1997, the Texas State Senate approved a post-tenure review bill that was designed to "get the deadwood out of higher education." A state senator asked me to take the bill to the House after another representative rejected it on the recommendation of the faculty associations. I took it on because I felt that I could modify it into a positive bill. I told the senator that I would carry the bill in the House, but he had to understand that it would come back to the Senate a very different bill.
My approach was to look at performance, particularly in terms of how we can improve the faculty. If we improve the faculty, then higher education is going to get better, and therefore, the students are going to get better service from higher education. The bill started out as a tool to "get rid of the deadwood," but what eventually passed the House and Senate brought the faculty and the legislature together.
What we came up with is a post-tenure review policy that allows the different university systems to adopt their own policies, while stipulating that the policies must have specific language that gives the faculty input. It also provides steps for alternative resolutions when problems in evaluating faculty arise. That is, instead of just going to court, the parties will sit down and try to work it out. It also has specific language that spells out why and how to let a professor go.
Lines in the Sand
Licata: So, Judy, as Arizonas policies began to be shaped and framed, and you moved to implementation, were there real "lines in the sand," main concerns and components that you and the Arizona Board of Regents strongly felt needed to be part of the final implementation?
Gignac: Absolutely. We were looking at, number one, timeliness. Some regents talked about getting rid of the deadwood, too, but what we were most concerned about was how long shared governance took to resolve issues of faculty performance. All of these committees, all these reviews, stopping in the middle of summer because everybody was gone on their whatever, this was very disturbing to us. And so timeliness was an important consideration, not only for the hearing process and to make a determination about a specific faculty member, but we wanted to have timeliness when we got down to the nitty-gritty of defining how long our policy would give a faculty member to actually show improvement.
Another challenge was coming up with a definition of "dismissal for just cause." What is "just cause"? Well, our old policy referred to incompetence, which is very difficult to define. We were determined to establish "just cause for dismissal" language that was more concrete, and stipulated that you could also be dismissed for failure to improve performance to a satisfactory level after having a reasonable opportunity to do so. That was a line in the sand. We would not get rid of that one.
Also, we wanted a better balance between teaching and research, particularly when it came to decisions regarding tenure, and also as a subset of decisions on work being evaluated for post-tenure review.
Now, of course, faculty had some lines that they had drawn in the sand, too, and the very first one was: Tenure shall not be repealed in Arizona. The second also was obvious: Whatever process we put into place, academic freedom and a good administrative process have to go with it.
Licata: Henry, as you look at your situation in Texas, what were your "lines in the sand"?
Cuellar: The House and the Senate were looking at accountability, with the rationale that if were going to put so much money into higher education, then we want some sort of accountability in higher education. The professors wanted to maintain academic freedom.
Licata: Henry, theres real concern on the part of faculty and administrators that if "heads dont roll" as a result of post-tenure review, then tenure is going to go back on the chopping block. How do you react to that fear?
Cuellar: I dont think that you have to have heads roll to show that something is working. I look more at the positive side. I think the legislature is looking at post-tenure review as a way to improve higher education. I dont think I ever heard a single legislator, not even on the Senate side when there was talk about deadwood, I dont think they ever said, "The way were going to measure this particular bill is to see how many heads have been cut off."
Licata: So how will you measure whether your bill has been successful or effective?
Cuellar: If we hear complaints from the higher education community that post-tenure review is not working, then we will look at it again.
Gignac: Well, Im hoping that the regents are going to take a wait-and-see attitude, although we do have some people on the Board who still believe that it is a matter of numbers: "How many have we dismissed? How many left before they did their post-tenure review? Were there enough of them?" Its interesting to note that a part of our overall process was that the Board of Regents actually went through faculty portfolios, and we learned how difficult the tenure process actually is. The end result being that we have a better understanding of the rigor of the process.
I believe that the success of post-tenure review will show up in our measurements for undergraduate improvement, from the results of surveys where students are taught by more tenured and tenure-track faculty, where more students have had personal contact with a professor while theyve been in undergraduate education.
Lessons Learned and Work Still Undone
Licata: As you reflect on the experience now, what do you think other institutions might take away from your experience as they grapple with either external mandates or questions and suspicion about faculty work life and the quality of faculty performance?
Gignac: Well, the one thing that I would say is that you give yourself enough time to learn the language of the other side. That you provide yourself with the latitude and the safety environment to sit and shout at each other, to get it all out, to get it on the table, for each side to see what is really bothering the other side. And once youve done that, I firmly believe, as happened in Arizona, that you can come together. We had extraordinary faculty members and some extraordinary regents working on the issue.
We still have pieces that we havent accomplished yet, and before we leave this morning, Id kind of like to run down that list.
Licata: Why dont you do that.
Gignac: Several issues have not been addressed. We still have not resolved or fully understood the gender/ minority faculty issue. We have data, but we dont have true understanding of why fewer women and members in the minority groups are on the tenure track, or why they really and truly leave prior to being tenured. Lots of ideas, but we really dont know.
We have the evaluation part of post-tenure review, and we have some aspects of the performance-improvement or faculty-development portion of it. But we do not have enough resources under faculty development to really do it right. Were doing it, and were doing a pretty good job, but were not doing it right because we dont have the resources.
We also dont have the third part the reward. You have the evaluation, you have the performance-improvement or faculty-development part, and then you need to tie in a reward system. And unfortunately, Arizonas legislature has been very tight-fisted on that side. So we need to find a way to incorporate rewards, both for the individual and for the department, because the next part of what were still lacking is an integration into the departments, the college, the university, and the overall system as far as the mission and goals, and utilizing those as a part of both tenure and post-tenure review.
And, of course, finally, is the one that is everybodys bugaboo, and that is the continuous training of those who do the evaluation. One of the neat little things that we have in our policy is there has to be a deans audit. The dean of each of the colleges must review 20 percent of the evaluations that take place in any one year, ostensibly so that 100 percent of those evaluations will be touched on by the dean over a five-year period. The institutions then report any problems in the post-tenure review process to the Board of Regents. And for the last two years, our two Research I universities have been remarkably honest with the Board of Regents as to what they have found lacking, where the problem areas are and a lot of those problems result from, or could be fixed with, better training of the evaluators.
Licata: Henry, what lessons do you think we could learn from the Texas experience?
Cuellar: Dealing with the fears of each group is a challenge. When the original bill passed over from the House to the Senate, faculty groups wanted to kill it, or at least postpone any decision until the next legislative session.
The faculty felt that the legislature didnt understand higher education and was trying to interfere with academic freedom. On the other side, the legislature believed that faculty just didnt want to be held accountable.
Moving beyond those misunderstandings takes a considerable amount of time. We had many long, long meetings. But the most important thing to remember is that we all want to improve education. We just have to figure out how you get there.
Judy Gignac is general manager of Bella Vista Ranches, and vice-president of Bella Vista Water Company, in Sierra Vista, Arizona. A member of the Arizona Board of Regents, she is that Boards liaison to the State Board of Community Colleges.
Henry Cuellar is a member of the Texas State House of Representatives and vice-chair of the House Committee on Higher Education.
Christine M. Licata is associate dean of academic affairs at Rochester Institute of Technology/National Technical Institute for the Deaf. She is an AAHE senior associate and director of AAHEs New Pathways II Post-Tenure Review project. She can be reached at firstname.lastname@example.org.
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