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    September 2017

    Preventing and Responding to Tenure Denial Claims

    For most academics, tenure--permanent employment granted to a professor after a probationary period--remains their professional goal. Recently, United Educators (UE) released a review of tenure denial claims (attorney demand letters, charges of discrimination, and lawsuits) over a five-year period. These claims can be costly and disruptive.

    Costs

    Tenure claims continue to be expensive to defend, and even more expensive to settle. The average claim settlement exceeds $100,000. In addition to monetary costs, institutions often spend significant time defending and reliving the decision, which can take a toll on faculty and administrator morale. UE’s tenure claims take, on average, 18 months to resolve, not including any previous internal appeal time. Remember that everyone involved in a tenure denial, from the department’s tenure review committee up to senior decision-makers, may remain involved throughout the life of the claim.

    Causes

    In a change from past UE findings, only 18 percent of claimants alleged breach of contract for failure to follow the outlined tenure review process, indicating that institutions have absorbed lessons about the importance of adhering to the tenure process. Instead, many claimants allege discrimination in the tenure review process and confusion about the correct tenure standards to use.

    Considerations

    Determining whether to invest in the defense of a tenure denial claim can be difficult. Early case evaluations are important and should consider:

    • The strength of the tenure denial decision. Decide whether the candidate failed to meet the institution’s tenure standards or if there were internal disagreements about the candidate’s strengths.
    • The merits of the claimant’s allegations. Investigate any discrimination allegations and look for facts, evidence, or ambiguities that make the case difficult to defend.
    • Whether the personnel involved in the decision will be credible witnesses. Are specific review decisions defensible? Inconsistency at different review levels may lead to conflicting testimony during litigation.
    • Any deviations from the required review process and the supporting documentation. A lack of documentation could make it difficult to prove what occurred and the reasons for changes.
    • The potential for negative publicity, either locally or nationally.

    If several factors reveal significant weaknesses, consider early settlement to help preserve institutional morale and financial resources.

    Institutions can take steps to reduce tenure denial claims. A crucial prevention effort is training faculty and administrators involved in tenure reviews. It is imperative they participate in periodic harassment and discrimination prevention training. In addition, train all faculty and administrators on the tenure process, including:

    • An overview of the institution’s tenure review process and timeline
    • A review of the criteria and standards for tenure, and the level or measurement a professor is expected to meet
    • Definitions of tenure criteria considered, such as collegiality and service
    • Limitations on what can and cannot be considered during the review process

    Encourage faculty to ask clarifying questions about the process and explore hypothetical situations, such as what happens if a candidate takes a medical leave during the probationary period.

    Despite best efforts, an unsuccessful tenure bid may still result in a claim. However, with training and early, honest evaluation, you can take steps to minimize the impact and disruption these claims have on your campus.

    By Heather A. Salko, senior risk management counsel

    Resources

    Problems Arising From Tenure Denials: A Review of Recent Claims
    The Goal Is Fairness


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