Right to Know Why Not

When a tenure bid goes south, is the professor entitled to know why? Experts say yes, but a faculty member at the U. of Missouri says the institution is holding out on his request for a reason.

October 9, 2014
 
University of Missouri
Dylan Kesler

Some 28 peer-reviewed articles, book chapters, $1.4 million in research funding and strong evaluations along the way – but still no tenure. The only thing more disturbing to Dylan Kesler, an assistant professor of wildlife sciences at the University of Missouri at Columbia, than his failed bid this summer is that he still hasn’t been told why. Kesler thinks he’s being retaliated against for blowing the whistle on alleged misuses of federal research funds in his department. But he says can’t confirm that or appeal the university’s decision without a formal reason for his denial.

While admittedly more complicated than most tenure disputes, Kesler’s case raises a basic question: Does a professor have a right to know why he or she didn’t earn tenure?

The American Association of University Professors says yes. Its Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments recommends that “in the event of a decision not to renew an appointment, the faculty member should be informed of the decision in writing, and, upon request, be advised of the reasons which contributed to that decision.” The statement also says that the faculty member should be able to request reconsideration of the unsatisfactory decision.

Most colleges and universities have incorporated the AAUP’s stance into their own faculty policies, and Missouri is no exception. The university system’s rules and regulations say that in the case of nonrenewal of regular or temporary appointments, “the faculty member shall be informed and, upon request, shall be furnished with an explanation of that decision.”

Anita Levy, who is associate secretary at the AAUP and has been involved in Kesler's case, said the issue is one of “minimum decency” and “elementary fairness.” She cited an article on the topic prepared for the AAUP by William Van Alstyne, now a professor emeritus of law at the College of William and Mary.

Van Alstyne says that some institutions may think offering reasons for non-reappointment and tenure denials makes them vulnerable to legal challenges. But he calls that line of thinking flawed, and argues that not providing rejected candidates with reasons is more likely to push them to file lawsuits – if only to force transparency.

“For an academic community to operate in any other way is regrettable and a distressingly poor example to set,” Van Alstyne says. “It may be a ‘nuisance’ to have to explain to a student the basis on which we assessed his work as ‘F,’ but most of us have long since accepted that obligation as a part of our commitment.”

He continues: “That a colleague should be treated with less compassion in circumstances where our collegial judgment terminates his career is something I can no longer defend or justify.”

It's not just faculty advocates who say institutions should share why they denied a professor tenure. The National Association of College and University Attorneys referred a question about the topic to Barbara A. Lee, a lawyer and professor of human resource management at Rutgers University, and co-author of the The Law of Higher Education. Lee said offering feedback about such decisions is a best practice.

"I think any employee, whether it's a faculty member or a staff member, deserves to know why they did not get tenure or promotion, or why they're losing their job," she said. "I assume generally institutions do have reasons for denying people tenure or firing them, and if they're justified in those reasons I don't see why they wouldn't share them."

Charges and Countercharges

For Kesler, who believes that he should have earned tenure based on his qualifications but was retaliated against by select colleagues and his provost and chancellor, the question is even more technical. He said Missouri faculty policy allows for a grievance against the chancellor’s ultimate determination, but only in certain circumstances: inadequate consideration, violations of academic freedom and violations of equal employment opportunity. Without a reason, he said, he doesn’t know whether his case qualifies for appeal. So he's in limbo.

Kesler, a Missouri native who studies bird populations, wants to stay at the university if he’s able – that is, if the chancellor were to reverse his decision after a successful appeal. But even if not – and in the meantime, given that his appointment is over at the end of this year – potential future departments will want to know why he didn’t earn tenure.

“I’m applying for jobs right now, and the first question someone [at another institution] asked me is, ‘So, what’s going on in your department?’ ”

According to additional court papers recently filed by Kesler, he asked Chancellor R. Bowen Loftin no fewer than seven times why Loftin rejected his tenure bid. That happened this summer after a department-level committee endorsed Kesler’s bid; a college-level committee recommended against him; and a campus-level tenure and promotion committee advised the chancellor to promote Kesler to associate professor with tenure.

Kesler alleges that the second level of review resulted in a negative recommendation due to inconsistencies in the selection process for committee members, and significant administrative interference in his tenure bid. Kesler says he believes that Mark Ryan, his academic division director, placed select student letters in his portfolio that disparaged his teaching and mentoring – even though student letters are not supposed to be included in the tenure dossier.

Kesler also alleges that Kenneth Dean, the interim provost, talked to faculty reviewers about the fact that he was being investigated for research misconduct, in violation of the university's confidentiality policy. He was cleared of those charges after five days of hearings before a faculty body, but he thinks Dean’s sharing details of the case hurt his bid anyway.

The professor also alleges that in one of his conversations with the interim provost, Dean said he was not recommending him for tenure because of “those issues” – presumably the research misconduct allegations. But he can’t say for sure, since Dean and Loftin allegedly declined to elaborate.

Kesler says that the chancellor, interim provost and a small group of faculty colleagues fanned the misconduct story in retaliation for his having filed a federal whistleblower lawsuit last year. The professor said he “wasn’t looking for trouble” in filing the suit, but was disturbed to learn that two professors in his department allegedly misused part of large grants from the U.S. Department of Agricultural to continue to pay their wives -- who were both employees of the department -- when they stopped coming to work to care for small children at home. In one case, Kesler said, a wife was paid as an assistant for four years, although she was not doing any academic work.

Kesler said it was common knowledge around the department. But around the same time he indicated he might report it, he said, misconduct charges against him surfaced. He said that a master’s degree student who had graduated several years earlier, and who had previously expressed dissatisfaction with his expectations, suddenly appeared again on campus and informally complained that Kesler had not included her name on a paper that contained data from her thesis. This time, though, Kesler said, she was working for one of the professors he had fingered for fraud.

Soon, Kesler's computer was confiscated and he was being formally investigated for research misconduct. In part to protect public funds and in part to protect himself, Kesler filed his whistleblower suit last spring. The suit also alleges retaliation for bringing the fraud allegations to light.

Since that time, the Department of Justice has declined to take up the fraud case. Federal investigators met with Missouri administrators about the case and, eight days later, some $59,000 in state funds – less than half of what Kesler estimates was paid out to the two professors’ spouses – was transferred into the federal research account. Soon after, both the department and the university said they were dropping their fraud investigations. A university spokeswoman told the Associated Press last month that the timing of the transfer was a coincidence, and related “to a separate issue that was identified during the investigation.”

“We did not want there to be any question about the funding of her salary,” Mary Jo Banken, the spokeswoman, said of one of the implicated spouses, “so we decided to shift the funds so her salary would be covered by the university.”

Kesler’s attorney, George S. Smith, a former Missouri professor who is representing several other faculty members in similar but unrelated suits against the university, said the whistleblower suit is still pending. But he and Kesler are deciding how to proceed in light of the news that the federal government will not be taking up the case, he said.

Late last month, Kelser filed additional writs asking that the university write him a letter saying that the research misconduct charges against him had been cleared, in an attempt to repair his reputation. Kesler also wants a written explanation as to why he didn’t earn tenure.

“Professors are always given a written explanation,” Smith said. “I have no idea why they won’t send him a simple letter.”

In a statement, Banken, the university spokeswoman, said she couldn’t comment on specific personnel cases, according to university policy.

But in relation to the whistleblower suit, she said, “[W]e are gratified that after a review of the case, the federal government decided not to intervene and that we do not agree with the claims of the lawsuit.”

She added: “Speaking generally, we always investigate any complaint of research misconduct and follow the process in the university’s research misconduct procedure before coming to any conclusion or decision. It is important to note that the allegations were not initiated by university administrators; they only carried out the research misconduct procedure based on a complaint.”

Regarding communications surrounding tenure decisions, Banken said that every faculty member who applies “is sent a personal letter informing him/her if his/her application for tenure status has been granted or denied.” But she did not say whether that letter should contain information about why the bid failed.

She said that no faculty member is ever penalized for launching complaints against the university.

It’s not only Kesler who’s curious about why he didn’t get tenure. In July, as the chancellor allegedly had indicated that he was going to reject the professor’s bid but had not yet offered a final decision, seven professors in the department of fisheries and wildlife sciences – the majority of full-time faculty – urged him to reconsider.

“[W]e wish to articulate our support [for Kesler’s] application for tenure,” the letter says. “We are deeply disturbed that he may be denied such. It is our shared opinion that Dr. Kesler’s research (publication and grantsmanship), teaching (undergraduate and graduate), and service (departmental, university and disciplinary) have met the expectations for tenure in our department/school.”

The letter continues: “We respect Dr. Kesler’s mounting of a vigorous defense of his case, especially given indications of there being iniquities in and procedural breaches of the evaluative procedures that have brought Dr. Kesler to this point: defense of oneself does not render one a wholly undesirable associate.”

The campus AAUP chapter has also asked for more transparency regarding Kesler's case. In a letter to Loftin, Stephen Montgomery-Smith, professor of mathematics and vice president of the chapter, said: “It is not at all clear to us as to why he was not provided all documents in his dossier and written explanations with specificity of negative recommendations and decisions at all levels as the dossier progressed.”

Understanding the Standards

Trish Roberts-Miller, a professor of writing and rhetoric at the University of Texas at Austin, did earn tenure at Missouri earlier in her career. But that wasn’t her first go-around: she had a failed bid at a third institution even earlier on. She’s compared that experience to a “car crash,” including in an essay for Inside Higher Ed.

“Sometimes a car accident happens because you did something really stupid,” she wrote. “Sometimes someone else did something malicious or stupid. Sometimes it really was just an accident. Even if you're absolutely blameless, it's hard not to feel that it happened because you suck, and because you did something wrong, and it's all your fault.”

In any case, she said recently via email, a professor should always know why it happened.

“The promotion and tenure process is supposed to ensure a stellar faculty; like any other personnel issue, for it to have a beneficial impact, it has to establish standards for which people can strive,” she said. “If people don't know what the standards are, they can't possibly try to meet them.”

If a university won’t make public its criteria, she said, “then it's admitting that promotion and tenure isn't about establishing a culture of excellence. And if a university won't say why someone was denied tenure, then they're saying there are hidden criteria.”

Karen Kelsky, a former tenured professor of anthropology at the University of Oregon and at the University of Illinois at Urbana-Champaign, is a now a career adviser for graduate students and moderator of the blog The Professor Is In. She also said that professors are “entitled” to know why their bids failed, given the “weight of history” of seven years building relationships with colleagues.

She said that’s particularly true since there were presumably annual reviews during each of those seven years, plus a formal third-year review. There should be no “secret criteria,” she said.

“But if the public and published criteria are all met, then that exposes the existence of other agendas.”

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