2005-06 Academic Year
Annual Report, 2005-2006
April 27, 2006

The Committee on Academic Freedom and Tenure (CAFT) has the following items to report to the Faculty Senate:

1.  No case came before the Committee on Academic Freedom and Tenure (CAFT) during the 2005-2006 academic year.  CAFT received one inquiry from a tenured professor concerning a grievance about being removed as principal investigator on a grant by the professor’s department head.  The professor decided to pursue the matter through the Research Integrity Office.  The matter has not come back to CAFT as of this date.

2. Carol Beltran, president of the Appointed Professionals Advisory Council, asked CAFT about adding representatives of this group to CAFT hearing panels when CAFT hears grievance appeals involving Appointed Professionals.  Adding Appointed Professionals to the membership of CAFT would require a change of faculty bylaws because Article IV.9 of the Bylaws of the General Faculty provides for CAFT to be made up entirely of members of the general faculty.  Furthermore, the faculty Constitution provides that CAFT has jurisdiction over matters involving the employment relationship between faculty members and the university and also over grievances against or by any member of the faculty.  Article V.9.b, Constitution of the Faculty.  Thus, it does not appear that CAFT has jurisdiction concerning grievances of Appointed Professionals.  On the other hand, the University Handbook on Appointed Personnel (UHAP) provides for appeals from grievance decisions to be brought by “a faculty member or by a professional.”  UHAP 6.04.  However, this provision specifically states that these appeals are subject to the jurisdictional rules in the Constitution and Bylaws of the General Faculty, which, as noted above, only give CAFT jurisdiction over matters involving members of the general faculty.  Unfortunately, this sort of inconsistency in CAFT’s governing rules (ABOR policies, UHAP, and the Constitution and Bylaws of the General Faculty) is quite common.

On the policy question, it does not necessarily make sense for a faculty committee to hear appeals from grievance proceedings by Appointed Professionals.  These professionals need a grievance process, but perhaps it should end with the provost under UHAP 6.03 or with an appeal to the university president, but not with prior CAFT review.    Thus, CAFT wishes to refer the policy question and issue of making changes in the faculty by-laws and constitution to the Faculty Senate. 

3.  As a result of cases heard during the 2004-2005 academic year, CAFT became aware of core flaws in its governing rules as applied to appeals to CAFT of tenure denial decisions.  Furthermore, these flaws could carry over to other cases involving academic freedom.  We have communicated with the Office of the General Counsel of the University about this problem.  ABOR 6-201M, among other duties, assigns CAFT the task of hearing appeals from tenure denials to determine whether any denial was based on “unconstitutional grounds (including violations of due process and academic freedom.)”  This ABOR policy also provides that the conditions of faculty service are to be interpreted under the laws of Arizona.  The faculty Constitution repeats the ABOR standard in Article V.9.b.iii, providing for CAFT review of “unconstitutional action, including violations of due process or academic freedom.”

The use of a legal standard, unconstitutional action under Arizona law (which presumably includes the U.S. Constitution as well as the Arizona Constitution), is problematic in at least three ways.  First, the constitutional law of due process as applied to tenure denial is extremely complex and murky, and academic freedom is as much an academic norm as a matter of constitutional law (and academic norms may set a higher standard than constitutional law). Second, faculty members lack the capacity to make legal decisions.   Most faculty members, even law professors, are not experts in constitutional law.  A better use of CAFT members is to ask them to make common sense judgments about the fairness of the process and about whether norms of academic freedom are being observed.  Third, by using a legal (constitutional) standard, the ABOR rules have contributed to the “legalization” of the CAFT process.  The presence of lawyers for all concerned (the complainant, the university, and CAFT itself) is not contributing positively to the process and is making the proceedings long, taking up valuable time of senior faculty and the provost.  This is a waste of resources.  The CAFT process would be better conceived of as a way for an elected faculty group to give an advisory opinion to the president on the fairness and soundness of the process that was used.  The president is of course free to ignore the advice.   Unfortunately, the reconceptualization suggested here would require changes in UHAP, the faculty constitution and the ABOR policy manual.

Another problem is that the ABOR policies, taken as a whole, suggest that untenured faculty members have due process and academic freedom rights as a result of their contracts, but CAFT apparently is not asked to review for failure to meet these contractual requirements.  See ABOR 6-201.D.5, preamble and part 5 (referring to a faculty appointment as creating an “employment contract” that incorporates the conditions of service in that ABOR policy); ABOR 6-201.A (stating that it is the policy of the Board of Regents to provide “due process for its employees,” and that the Board recognizes “the honorable tradition of academic freedom in teaching, research and service”); and ABOR 6-201.E.4 (providing for review for tenure “in accordance with procedures adopted by each university”). 

Judging by the president’s letter in one CAFT case, the Office of the General Counsel seems to concede that there is a right to due process in a tenure review that is a matter of contract and that goes beyond constitutional requirements.  However, this letter also took the position that it is inappropriate for CAFT to consider the adequacy of the quality of the process as part of its due process review.

In sum, CAFT wishes to bring two issues to the attention of the Faculty Senate.  One is the murkiness of the ABOR rules (and faculty Constitution) as applied in particular to tenure denial cases.  It would be desirable to state standards for due process and academic freedom in the rules, rather than referring to elusive constitutional standards that are a matter of legal debate.  The word “unconstitutional” should not qualify CAFT review for denial of due process or academic freedom.

The second issue is a faculty governance concern with a university administration position that CAFT should not judge whether a tenure review process met a standard of adequate quality.  In the particular case mentioned above, a unanimous five-member CAFT panel took the position that a particular tenure review process had failed to meet a standard of adequate quality in its evaluation of both scholarship and teaching.  Although reaching positive conclusions on the tenure case, the departmental committee and the department head failed to provide adequate analysis in their reports, leaving upper level stages in the process unable to make an adequately informed review.  The CAFT panel concluded that the faculty member had been judged on the inadequate quality of the lower level reports rather than on the merits of the faculty member’s case. CAFT did not, could not and should not evaluate the merits of a tenure case and did not attempt to do so in this instance, but it did find the quality of the process inadequate and thus substandard and took the position that the upper levels of review, which were divided, had an inadequate basis for making either a positive or a negative decision. The faculty generally might be concerned that a substandard process is both unfair and unlikely to uphold academic standards of excellence and might want some delineation of the quality of process expected to meet a due process standard.

The American Association of University Professors (AAUP) provides the following standard for a review committee, such as CAFT, to apply when evaluating tenure and other non-renewal decisions:  “whether the decision was the result of adequate consideration in terms of the relevant standards of the institution.”  AAUP, Recommended Institutional Regulations on Academic Freedom and Tenure, p. 23.   This is a standard faculty members can understand.  In the case mentioned above and in the absence of a definition of due process in the ABOR policy, CAFT made use of this standard to flesh out what is meant by due process and to interpret it as involving at least a low standard of quality for a tenure review process—adequacy of consideration.  In other words, due process in CAFT’s view is not a purely formal requirement that can be met by going through motions without presentation of adequate analysis at crucial stages. The university president, supported by the Office of General Counsel, took the position that CAFT “deviated from its mission” when it used the AAUP standard to help define due process.  Thus, CAFT refers this difference of opinion to the Faculty Senate for consideration.  Whatever the standards for due process and academic freedom, it would be desirable to state them in applicable rules rather than expect CAFT members to apply standards from uncertain constitutional law.

4.  A more minor issue concerning governing rules is that UHAP 3.12.08 requires a faculty member denied promotion or tenure to appeal to the president within 30 days after notice of the provost’s decision, but it sets no time limit for the president’s decision on the appeal.  In two cases in 2004-2005, the president did not make a decision for five months or more, meaning the tenure candidate did not hear from the president until late fall or even the beginning of the second semester, pushing the CAFT proceedings late into the faculty member’s terminal year.  Having a deadline in UHAP for the president to respond to a tenure denial appeal would be desirable.  UHAP elsewhere suffers from a similarly one-sided set of timing requirements.  See UHAP 6.02 (setting time limits of 90 days, 30 days and 10 days for a grievant to act at various stages in a grievance process but setting no limits on the timing of administrative responses).  It would be advisable to review all the governing rules and make changes to avoid one-sided procedural requirements. 

                                                            Respectfully submitted,

                                                            Jean Braucher, CAFT Chair
                                                            and Roger Henderson Professor of Law