Kangaroo courts elect candidates to the club

April 6, 2001

Quasi-judicial proceedings to select tenured professors in the United States are unfair, argues Joseph Fulda.

Today in the United States, universities are not content to say, simply and truthfully, that membership of the tenured professoriate is solely by election of its members, subject to the approval of the administration. Instead, they speak law. There are "hearings" at which "panels" take "testimony" from "witnesses", who "appear" before them, and which "examine" the "evidence" against "enumerated" criteria, with provisions for "due process" and "appeals".

By using the terminology of the law without any of its real safeguards, universities create expectations that can fairly be regarded as contractual, expectations that are often severely breached. Universities should not be allowed to have it both ways, exercising pure discretion while maintaining publicly that their decisions are judgements of merit based on evidence evaluated with due process.

They should not be allowed this duplicity: the written statements on evidence and procedure, and the public pronouncements on merit that universities regularly issue, grant a property interest to the candidate and defame the unsuccessful candidate, who will be presumed to have been found deficient in teaching or scholarship.

The systems of judging merit suffer from one inescapable, overriding deficiency: they are ex parte proceedings - trials in absentia - in which evidence is largely solicited, heard and evaluated in secret, with minimal direct participation from the candidate. The candidate becomes the object of study for his or her senior colleagues, rather like a dead poet or novelist, a text under interpretation, or, in severe cases, a bug under a microscope. The candidate has no opportunity to confront the evidence, to try it and test it, or to offer evidence in rebuttal.

What is wrong with treating as an object of study, in a scholarly way, if not the candidate, then at least his scholarly work? After all, is that not what scholars do all the time to texts? Of course, but scholarly processes are not quasi-judicial, and are often entirely mistaken.

Furthermore, few institutions are prepared to grant tenure or promotion based on advocacy scholarship that starts with certain conclusions and then seeks to adduce supporting evidence and arguments. Such scholarship is thought to be politicised, a cover for ideology, even when it is thoughtful, informed and reasonably persuasive. If this sort of writing cannot result in tenure or promotion, why then is it permitted in judging tenure and promotion cases? This is a double standard - one standard for judging scholarship and another for meta-scholarship.

It is often said by American universities that "we provide much more process than the law requires". This is misleading because the suggestion is always made that there is a genuine judgement of merit and that this is accomplished through much process. But this is undue process - the length of academic trials is inordinate and the size of the record generated is usually preposterous.

Due process, in contrast, has nothing to do with how much procedure there is but with the quality of the procedural and evidentiary rules. Likewise, the issue is not how many levels of review there are but how independent they are. The hallmark of an appeal is the independence of the appellate panel. By this measure, almost all academic appeals are not appeals at all, but rather complex motions for reconsideration.

However, the evidentiary violations of genuine due process are even worse than the procedural violations. The "evidence" commonly includes most of the following: inflammatory content whose prejudicial value outweighs its probative value; and hearsay - ie gossip, anonymous testimony (usually from students), aggregated testimony elicited by leading or misleading questions (usually from student evaluations), opinion evidence by persons who are hardly experts, testimony by persons who have no standing to testify at all since they have nothing relevant to say and testimony by interested witnesses whose interests are concealed.

These procedural and evidentiary abuses together with the fact that the whole rigmarole is done behind the candidate's back render the personnel process a mockery of due process.

Joseph S. Fulda ( fulda@acm.org ) is contributing editor of Ideas on Liberty and Computers and Society , associate editor of Sexuality and Culture , and columnist for the St Croix Review .

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