Court Curb on Tenure Secrecy Splits Educators

Awarding faculty tenure--tantamount to lifetime employment as a professor--long has been surrounded by secrecy. So the academic community was amazed and divided Tuesday when the U.S. Supreme Court unanimously ruled that teachers who say they were illegally denied tenure can now read previously confidential files about them.

The court decision badly disappointed administrators and faculty who say they may no longer be willing to give candid evaluations of young professors for fear of being dragged into a lawsuit. Such a result will harm academic freedom and the quality of hirings, they say.

“Who is going to write anything but a positive letter given that the candidate will see it?” asked Lewis Solmon, who is dean of UCLA’s Graduate School of Education and has been involved in several sensitive tenure cases.

However, the ruling was welcomed by attorneys for teachers who were denied tenure and who claim to be victims of racism or sexism. Those aggrieved teachers say secrecy is a shield for personal grudges and unfair practices.

“I think it’s sensational,” Oakland attorney Robert Bezemek said of the decision. “I think it will make a big difference for the number of women and minorities on the faculty of major research universities.” He represents teachers in a separate lawsuit against UC that challenges tenure secrecy; that case is now before the state Court of Appeal.

The federal case, University of Pennsylvania vs. (U.S.) Equal Employment Opportunity Commission, involved discrimination charges filed with the commission by Rosalie Tung, an Asian-American who was denied tenure at Penn’s Wharton School of Business in 1985. The university refused to hand over reviews of Tung by other scholars. The commission won two lower court rulings but the university appealed and had the support of briefs from Princeton, Brown, Stanford, Harvard and Yale.

Writing for the court, Justice Harry A. Blackmun said academic freedom means that government cannot try to control speech or thought at a university but does not allow total secrecy in hiring practices.

William W. Van Alstyne, general counsel for the American Assn. of University Professors, said the court “seriously erred” and underestimated the threat to candor in tenure reviews. Other experts said the ruling could backfire, with decisions being based on gossip rather than on formal evaluations.

In the state court case against UC now being appealed by the American Federation of Teachers and several teachers, a compromise has been proposed by the union, which mainly represents non-tenured professors. That would allow candidates to routinely see their reviews but without identification of their reviewers, said UC Davis history professor Paul Goodman, former AFT president for the UC system. “I hope the Supreme Court decision will make the university more willing to negotiate,” he said.

But Gary Morrison, a deputy UC counsel, said the Pennsylvania case was much narrower, involving a federal agency’s powers, and will have little effect on the UC dispute. UC now allows candidates to see summaries of criticism against them but the AFT wants full texts. The UC faculty Senate, which represents tenured teachers, opposes such full disclosure.