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Pre-Tenure Review & Post-Tenure Review

In the era before massive budget cuts to Higher Education, newly minted PhD’s could expect their teaching effectiveness and scholarship plus service to the university to be rewarded with tenure, typically at seven years of service. Tenure gave them “an expectation of permanent employment” as the due process court opinions describe. The idea, particularly at state funded schools, was to grant a “property interest” to college and university professors so that they would be assured of due process rights to their employment. The 14th Amendment promise that no person should be deprived of life, liberty or property without due process of law, as applied to public employees, means that the employee must have a “property interest” in his or her employment by having an “expectation of permanent employment.” Tenure is the mechanism to grant this expectation of permanent employment on college and university professors. Pre-tenure review and post-tenure review policies determine how tenure is granted, denied or lost by those already given tenured status.

Pre-Tenure Review is the process by which a college or university determines to award or deny tenure to a “tenure-track” professor. When hired, a professor’s contract should clearly state that the position (typically as an Assistant Professor) is a tenure-track position. This begins the process whereby a new professor can hope (and perhaps expect) to achieve tenure within a stated number of years, typically seven but sometimes shorter. The college or university policies, universally published on school websites, lay out the process of pre-tenure review leading up to a final decision to grant or deny tenure. These processes involve annual department level reviews by a review committee and approval by the dean. Typically at Year 6, a candidate applies for tenure and his or her record is reviewed with the customary allocation for a decision being based on 40% for teaching, 40% for research and publication, and 20% for service to the college or university.

Pre-Tenure Review is a contractual relationship between the candidate and the school. It carries the standard contract law implied promise of “good-faith and fair dealing.” In our practice, we find that sometimes this implied promise is broken due to political considerations, bias and prejudice. Faculty members who clearly demonstrate proficiency in teaching; good quality and  quantity in research and publication, and good service to the college or university, and are denied tenure should appeal such a denial and, if necessary, pursue their rights in court.

Those faculty who have achieved tenure cannot rest on their laurels. It has become more common in the past ten years for deans, provosts and presidents of universities to look for ways to trim expensive professors from the payroll, particularly those age 65 and older. Post-tenure review has been the mechanism in some cases to target older professors for alleged non-performance and to implement a performance improvement plan. Failure to achieve the expectations of the Performance Improvement Plan can lead to dismissal.

If you believe that you have been unfairly denied tenure or have been subjected to a post-tenure review process that is motivated by bias or budget targets, our firm is available to discuss your situation. Cases are accepted nationwide at both public and private colleges and universities.

You may contact attorneys Clifford A. Cohencac@studentrightslawyers.com ) and Andrew Duncan ( ad@studentrightslawyers.com ) at 785.979.7361.

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