Shoring Up Tenure, or Weakening It?

There’s a lot to like about proposed changes to West Virginia University’s appointment, tenure and promotion guidelines, from a faculty rights perspective. The draft document urges credit for faculty members supporting the university’s diversity, equity and inclusion mission, or who are otherwise doing community-engaged or interdisciplinary work; this presumably addresses long-standing concerns across academe that such efforts go unrecognized in traditional faculty reward structures. In another proposed change, faculty performance evaluations should be based on “a holistic assessment of evidence” rather than “over-reliance on student feedback of instruction.” This seemingly reflects the growing body of research on student evaluations of teaching being unreliable indicators of instructional quality.

But the same draft is alarming to some faculty members at WVU. Most significantly, it outlines a clear process for removing even tenured faculty members for unsatisfactory performance. Professors who receive an “unsatisfactory” rating in teaching, research or service during their annual reviews must be put on a performance improvement plan within 30 days. Faculty members rated unsatisfactory in the same area (teaching, research or service) the next year will be recommended for noncontinuation, meaning termination.

Faculty members rated unsatisfactory in the same area in two out of three consecutive annual reviews also will be recommended for termination.

One particularly contentious portion of the draft, which WVU now says will be removed by the end of the week, proposes that faculty members who receive unsatisfactory ratings in two areas in just one year must be recommended for noncontinuation.

A recommendation for noncontinuation triggers a multilevel review, including by the provost.

Both departmental committees and chairs rate assistant and associate professors annually. Chairs rate full professors, who may choose to be rated by their department colleagues, as well. Chairs and departmental committees don’t have to agree on unsatisfactory ratings under the proposal: a single unsatisfactory rating in one area or more, from a chair or committee, leads to a performance improvement plan—or termination, depending on the professor’s history.

Another controversial change involves requiring external reviews not only for tenure-track and tenured faculty promotions, but also for non-tenure-track professors. This is too onerous a mandate where tenure is not on the line, some critics argue.

The draft also formally incorporates WVU’s Code of Conduct into the tenure and promotion process, saying that “faculty members must engage in behaviors consistent with the university Code of Conduct and university values.”

These values include, “Be an ambassador of WVU and avoid conduct that reflects adversely on the image of the university,” “Interact with others, regardless of position, in a courteous manner using appropriate tone and volume,” and “Respect the decisions that have been made in the best interest of the university.” They’re subjective notions, and some on campus worry that linking them to tenure and promotion risks academic freedom.

WVU published the draft document on Oct. 7, and an open comment period ends Nov. 11.

In a separate process, faculty members—especially those in law—are fighting a proposed Board of Governors rule change that would limit professors’ ability to participate in legal challenges against state agencies. This parallels an ongoing fight at the University of Florida, where professors allege in a blockbuster lawsuit that the university violated their First Amendment rights by preventing them from serving as expert witnesses in a voting rights case against the state of Florida.

UF eventually said that the professors could participate in the case on a pro bono basis. The professors aren't satisfied with that, however. At WVU, it's proposed that no employee may count as their institutional duties activity “adverse” to West Virginia or any of its agencies in a formal legal proceeding. These engagements are considered outside consulting agreements, in any case, and must be approved in advance by administrators, according to the proposal. Adverse to the university or to West Virginia means serving as counsel (pro bono or paid), being an expert witness (paid only) or filing as counsel (pro bono or paid) an amicus brief for a party challenging the state.

R. Scott Crichlow, associate professor of political science at WVU, said that the “wholly new” tenure and promotion policy additions on noncontinuation, the fact that unsatisfactory ratings can come from either a chair or faculty committee, and the “very brief” timelines for community review top his list of concerns.

The Code of Conduct’s inclusion is “problematic as a whole,” he added, “but particularly bad for those who teach or research on topics that could be deemed controversial.”

Implications for Academic Freedom

Anita Levy, senior program officer at the American Association of University Professors in Washington, D.C., whose office has fielded WVU faculty concerns on this, said that posttenure review’s threat to academic freedom is “actualized when a posttenure-review process leads to terminations of appointments without academic due process.”

The AAUP defines due process as an adjudicative hearing of record before a body of faculty peers, in which the burden of demonstrating adequate cause lies with the institution. Standing WVU policies only allow faculty members to grieve negative decisions, per state laws for public employees.

West Virginia Campus Workers, a would-be wall-to-wall union seeking to build power on campus, despite the state of West Virginia’s law against collective bargaining for public employees, said in a statement that the tenure and promotion proposals “would amount to a stunning blow to job security and lead to top-down decisions about employment, also undermining efforts at recruiting and retaining faculty. Removing job protections would also weaken academic freedom, or the ability of faculty to conduct research, produce rigorous scholarship and creative work, and teach free of political pressures and influence by wealthy donors.”

WVU faculty members aren’t alone in facing changes to their tenure protections. The University System of Georgia last year made it possible to fire a tenured professor as part of the posttenure-review process without faculty input. Florida legislators this year adopted a posttenure-review measure. And in a near-secret vote, Mississippi’s Board of Trustees of State Institutions decided that tenure and posttenure-review candidates will be judged by their collegiality; “effectiveness, accuracy and integrity in communications”; and lack of “contumacious conduct.”

In Texas, Lieutenant Governor Dan Patrick has vowed to end tenure and initiated a formal review of the practice. Louisiana lawmakers have initiated a similar review.

WVU’s tenure and promotion policy was last updated in 2014–15. Working with the provost’s office, a group of administrators and faculty members called the Faculty Rewards and Recognition Committee began working on the current draft in early 2021.

Shauna Johnson, university spokesperson, said that “One of the overall goals is to expand the definition of what counts in teaching, research and service—including such areas as public, community-engaged and multidisciplinary scholarship and social justice work that impact and engage a variety of external audiences. We believe this will lead to a more inclusive approach by recognizing a wider range of contributions made by faculty.”

The changes “are also designed to ensure rigor and consistency in faculty evaluation processes and provide greater transparency about university practices regarding nonretention of tenure-track and noncontinuation of tenured faculty,” Johnson said. “In other words, this is about helping people better understand how the process works and the criteria for making such decisions, not about clearing paths for removal.”

Johnson noted that this is “an ongoing, iterative process without a final document at this point.”

It’s already possible to remove tenured faculty members for job performance issues at WVU, but the process for doing so isn’t well defined. For this reason—and what he called a national “trend” against tenure—Scott Wayne, associate professor of mechanical and aerospace engineering and chair of the WVU’s Faculty Senate, said he supported the proposed changes as shoring up tenure to promote its longevity.

“If you’re retaining faculty who are not performing their responsibilities, then that doesn’t really support tenure,” Wayne said. “That adds to the argument people can make that tenure should not exist. So the university’s position and a lot of the faculty’s position is that if you have accountability for poor performance, and you do remove tenured faculty in those situations—and it’s a very small number; much less than 1 percent of the faculty have ever been removed for unsatisfactory performance—then you can make a stronger argument for the existence of tenure. That’s an argument against the opinion that tenure is a job for life.”

Wayne also said that the university has thus far proved responsive to faculty concerns, such as by signaling that it will retract the proposal on recommending faculty members for noncontinuance after just one year.

The Senate is scheduled to vote on the proposed changes Dec. 5.