Tenure, Discrimination, and the Courts

Terry L. Leap
Ithaca, New York: ILR Press, 1993
224 pp., $16.95 pb, $34.00 hc

Marvin D.L. Lansverk

Depending on your point of view, Leap's book is a sobering or heartening account of the current judicial attitudes towards intervention in university promotion and tenure decisions and processes. In a (hyphenated) word, the book tracks the courts' longstanding anti-interventionist approach when it comes to the arcana of college and university review procedures. One statistic carries the news: the odds are 4-1 against winning a sex discrimination case against an institution of higher education. The purpose of Leap's book, however, is much broader than this. It is a "landscape" monograph, surveying the current legal territory, with the intent of mapping out a complex terrain. It serves this function admirably, but just who will benefit most from the efforts is unclear. Leap, a professor of management at Clemson University, suggests his work is directed to a wide audience: faculty, administrators, and legal counsel. Early on, he expresses the hope that "my colleagues and I might avoid the mistakes of others" (vi) by imbibing the book's contents. As it turns out, however, the information ultimately seems more directed towards university administrators or their lawyers--if not by design, then simply by the nature of the material.

The book is focused on court activity since the 1972 extension of Title VII of the 1964 Civil Rights Act to academic institutions. It opens with an excerpt from an academic novel, The Class, where an assistant professor at Harvard is given the bad news that he's been denied tenure, in spite of a well received book. Leap well understands what is at stake here, the emotional and financial repercussions of being discharged--and the room for unfair or illegal manipulation within the subjective and decentralized peer review procedures employed by most universities. While framed as an advice book, the work functions more as a detailed description of the laws governing wrongful dismissal, of standard university review procedures, and the results of recent litigation.

There is much of value to a faculty member considering litigation here. Leap outlines the typical arguments employed, the relevant laws cited for redress, and the relative success rates of the various claims. Among such claims are a lack of institutional support, preventing faculty from living up to tenure and promotion standards, and a misapplication of those standards: whether from racism, sexism, or other political biases. The itemization and description of the law (from the Fourteenth Amendment to the Civil Rights Acts of 1870 and 1991), while not riveting reading, is perhaps the most useful section of the book, collecting in one place an account of the legal ammunition required to mount a court battle. More riveting are the summaries of actual cases demonstrating the difficulty of success, even when funny business seems present. Case after case is described, depicting the current anti-interventionist attitude, with the courts consistently citing a lack of judicial expertise necessary to meddle in university affairs, a recognition of the long term implications of tenure, and a respect for the principle of academic freedom in defense of inaction. Among the more surprising cases Leap cites were those where the courts have supported universities' right to refuse tenure to "troublesome" faculty, or those who "create political turmoil" (175). Further, even if minimum standards are met, courts have maintained universities' legal rights to fire faculty whose research and teaching no longer meet institutional needs.

One of the few counter examples is Brown vs. the Trustees of Boston University, where English professor Julia Prewitt Brown was denied tenure in spite of the unanimous support of her department promotion and tenure committee and a strong teaching and research record. Though the courts have typically refused to act as super tenure review committees, they did in this case. Brown filed a Title VII sex discrimination suit, surprisingly inducing the U.S. Court of Appeals (First Circuit) to conduct its own detailed review. When comparative studies clearly demonstrated that her record was superior to that of other (male) faculty already granted tenure, the court ordered that she also be granted tenure.

Less useful than these case summaries are the sections of Leap's book which catalogue standard university tenure procedures and criteria. While it may be interesting to see how one's own university's procedures stack up against these typical examples, most of the information here will already be familiar, except perhaps to someone fresh out of graduate school. Even then, reading one's own faculty handbook would be more informative than Leap's general accounts of the various weightings of teaching, research, and service. Part of the trouble here lies in Leap's sustained descriptive method. Whenever an issue is approached--be it the relative merits of external reviewers for valuing someone's research, or how teaching effectiveness is to be measured--Leap never goes beyond listing three or four "pros" and "cons" on each side before moving on, giving the work a Cliff Notes feel whenever it moves away from case law. In fact, the entire book reads like an outline, with both the benefits and banalities such a form can bring. On the bright side, it is easy to extract useful information from the work. But the form also leads Leap to feel it necessary find sub point "b's" for every sub point "a." It may be true that "some cases have been backed by solid evidence of illegal discrimination, whereas others have lacked convincing proof" (8), but it hardly seems worth drawing out.

Much of the rest of the book, rather than serving a faculty audience, seems aimed directly at university administrators. The basic advice framework makes this clear. Given the high cost of litigation, Leap argues, "prevention is clearly a superior alternative" (18). But much of Leap's preventative advice is fairly mundane: in short, university administrators should spell out policies clearly, apply them consistently, and communicate them effectively. Granted, some of the more specific suggestions do seem worthy of his emphasis: articulating as clearly and as early as possible both standards and their current interpretations (preferably during the initial job interview itself); promising only the research support and teaching assignments that can actually be delivered; and instituting an effective mentoring program for junior faculty (though a brief itemized list of reasons senior faculty dislike such programs is also provided). Other administrative information is more strategic: on creating a well established paper trail; on dismantling a plaintiff's prima facie case for discrimination (which is relatively easy as long as a legitimate, nondiscriminatory personnel reason can be found); on challenging litigant's attempts to use statistics or inter-faculty comparisons to show bias, and on clarifying the confidentiality of peer review evaluations and ballots. Even in this section Leap is still chiefly describing court decisions, not celebrating them, but his implicit faith in self-policing and rational communication to root out systemic bias seems naive. Near the end of the work, Leap asserts that "most college and university administrators bend over backward to ensure that they make the right decisions" (181). Maybe so, but it is sometimes the threat of external scrutiny and lawsuits that can help realign what counts for right with what is actually right. And even then, as the book's case studies make abundantly clear, the perceived threat of litigation may still not be enough to guarantee a fair and unbiased review.

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