Traditional University Tenet Tested : UC Tenure Dispute Challenges Jealously Guarded Process

American universities have long held tenaciously to the right to choose for themselves, free from outside interference, who will teach at their institutions.

On the campuses of the University of California and other prestigious institutions throughout the country, that decision is made largely by faculty members in a confidential process to decide who will receive tenure--the coveted appointment to a teaching position until death, retirement or dismissal for cause.

But now UC is defending against a legal challenge to closed tenure evaluations in a case that presents a sharp conflict between claims of academic freedom and the constitutional right to due process.

Lawyers say that the issue is likely to end up before the California Supreme Court for a landmark ruling.

The University of California contends that the lawsuit it is fighting strikes at the heart of the peer review system and poses a “grave threat” to its quest for excellence in academic standards.

If faculty members cannot be guaranteed their evaluations of colleagues will remain confidential, many will not participate in the process for fear of defamation suits and those who do may hesitate to be completely candid, the university says. As a result, it maintains, academic standards inevitably will decline.

“The right of the faculty to choose its peers is a very, very important principle and we believe the process it uses does not violate the rights of candidates for tenure,” UC counsel Philip E. Spiekerman says.

“The university seeks to appoint and promote the very finest scholars in the world. It seeks excellence--not mere competence.”

But five present and former UC academics who brought the suit, joined by the American Federation of Teachers, say that the closed procedures prevented them from finding out who voted to deny them tenure and exactly why. They say they found too late that false and erroneous information may have been used against them.

“I can’t be certain even now why I didn’t receive tenure,” says Dr. Judith Cohen, an epidemiologist and former assistant professor who has spent six years and more than $12,000 in legal fees contesting UC Berkeley’s refusal to grant her tenure. “From every indication, my qualifications were just as good or better than those who got tenure.”

Robert J. Bezemek, the Oakland attorney representing the plaintiffs, rejects the notion that the suit would undermine academic independence and standards.

“With a closed system, it’s very likely that people who should have been promoted, didn’t get promoted--and it may also be the reason minorities and women have difficulty getting tenure,” Bezemek says.

“With an open process, nobody will be forced to promote anyone. The university still will have complete discretion. It just means there will be fewer mistakes.”

Under the university’s procedures, junior faculty members being considered for tenure are evaluated by fellow department members as well as outside specialists in their field. Ultimately, the chancellor or his designate makes the final decision on tenure, usually following the recommendations of evaluators.

Tenure candidates are given certain rights to review the files, rebut allegations or what they see as misinformation, and can appeal denial of tenure to a special faculty committee. In addition, they can notify the university of any potential evaluators they believe will not be fair.

But they cannot obtain the names of people making evaluations or other data from which they could identify the evaluators. Instead, they can receive a summary of any confidential documents and are given reasons in writing why they are being denied tenure.

The university stresses that when candidates for tenure join the faculty they know their work will be subject to intense review and that there are no assurances of appointment. Recent studies of UC campuses indicate that about 80% of the candidates receive tenure.

The lawsuit, representing the first major constitutional challenge of UC’s tenure procedures, was filed in Alameda County Superior Court last year. A hearing is expected this summer on a forthcoming motion by the university for a summary judgment in its favor. If it loses, a trial would follow, with the losing side likely to appeal.

The plaintiffs are asking the court to order that the full text of all evaluations and names of evaluators be given to tenure candidates at the outset of the process--and that candidates be granted the opportunity to answer any allegations before a vote is taken. All rejected candidates in current cases should be granted new tenure or promotion reviews, they say.

The present procedures not only violate tenure candidates’ right to due process but also their right to privacy by denying them full access to material about them that the university has gathered, the plaintiffs say.

The plaintiffs acknowledge that the university for over a century has operated with relative independence and that the legislation that created the institution in 1868 was carefully designed to insulate academic activities from politics and other outside influences.

But they maintain that confidentiality in tenure questions too often hides unfairness and prejudice--and that the courts should intervene when necessary to protect the rights of individuals.

Some academics who are backing the lawsuit say that summaries of confidential data that candidates receive are so generalized they often do not clearly show whether an evaluation overall was positive or negative.

“All the pros and cons about a candidate become absolutely blurred,” says Patricia St. Lawrence, a tenured UC Berkeley professor who has helped advise rejected tenure applicants. “You still don’t know who said what or for what reasons. There’s no way to disentangle it.”

Plaintiff Cohen, who was an assistant professor in the department of biomedical and environmental health sciences at UC Berkeley from 1974 to 1983, says the explanation of her tenure denial consisted of four conclusional sentences with no supporting information.

She says she suspected but could not prove that another professor seeking tenure had written an extremely critical review about her. She further suspected sex-bias in the hiring process and said in court papers that a high-ranking male professor in the department had made sexual advances to her that she had rebuffed.

Since then, Cohen says, she has had great difficulty finding comparable employment in what is a limited and specialized field. An opportunity arose out-of-state--but with a husband employed in a tenured position at a nearby institution, she was reluctant to move. Cohen now is performing AIDS research at San Francisco General Hospital, but not in her field of epidemiology.

“Being denied tenure is an extremely serious setback to one’s career,” she said in a recent interview. “If you’re in a specialized field, others will know that this has happened . . . and of course this hurts your chances of finding a comparable position.”

For its part, the university contends that its procedures offer numerous safeguards to protect candidates against unfair tenure denial.

UC counsel Spiekerman says many faculty members have indicated that they would not make evaluations if confidentiality were not maintained. “One of the big difficulties would be the risk of lawsuits, such as defamation suits, from disclosure of an evaluation,” he says. “We’ve already had instances where tenure reviewers have said, ‘Thanks, but no thanks’ if confidentiality cannot be guaranteed.”

University lawyers acknowledge that in some instances, courts have required disclosure of some confidential data in cases presenting claims of job discrimination. But they note that no state or federal court in California has yet ordered disclosure of the identities of evaluators in a tenure case.

UC attorneys also concede that several institutions--the University of Wisconsin, the University of North Carolina and the University of Oregon, among others--have widened access to confidential material. But they note that countless universities--Harvard, Yale, Michigan, Texas, Penn State and Duke, among others--still maintain confidentiality in tenure evaluations.

UC’s position drew what its attorneys view as important precedential support in another case involving a tenure dispute at Stanford University.

In that case, Ivor Davies, a former visiting professor at Stanford, claimed that he was improperly denied tenure by the history department. Davies obtained a Superior Court order requiring Prof. Harold Kahn to submit to questions about allegedly derogatory comments he had made about Davies.

Kahn had refused to submit to a deposition on the grounds that being forced to testify about how he voted or the comments he made in evaluating Davies’ tenure candidacy would violate Kahn’s rights to privacy and academic freedom.

A state Court of Appeal panel last month upheld Kahn’s refusal to be questioned, saying that in the absence of a “compelling state or national interest,” the university’s need to preserve confidentiality in the tenure process outweighed Davies’ need for Kahn’s testimony.

“Excellence cannot be achieved unless faculty members, without fear of disclosure, are able to express candid appraisals of the qualifications of tenure candidates,” Appellate Justice Harry F. Brauer wrote in an opinion joined by Appellate Justices Nat Agliano and Walter P. Capaccioli.

The court acknowledged that abuses could occur in the peer review process--but concluded that the overall value of closed evaluations was of such importance that it should not be impaired.