Schweitzer, Laura PhD; Eells, Tracy D. PhD
In 1940, the American Association of University Professors (AAUP) issued their historical Statement on the Principles of Academic Freedom and Tenure.1 Perhaps the most notable excerpt from this document is as follows: “Tenure is a means to certain ends; specifically (1) freedom of teaching and research and of extramural activities; and (2) a sufficient degree of economic security to make the profession of teaching attractive to men and women of ability.” Tenure stands today as the basis for most long-term contractual arrangements between faculty and their institutions. U.S. courts have fairly consistently upheld tenure as a legally binding contract that protects the property interests of the tenured faculty member. Tenure, as defined by the AAUP, is the guarantee of due process and can only be terminated for cause or under some other specific conditions; the most common condition for the termination of tenure is retirement. At the time that the AAUP statement was issued, the mandatory retirement age was 65.
The landscape changed at our universities when the Federal Age Discrimination Acts of 1986 and 1992 were issued. Termination of employment on the basis of age (mandatory retirement) in all but a few select professions (such as airline pilots) is now prohibited. Since the enactment of these laws to the present, the median age of medical school faculty has increased by about 10 years, and the percentage of medical school faculty over 65 years old has grown from near zero to over 12%.2
Whereas tenure is a property interest, and termination of tenure falls within the due process clause of the 14th Amendment, routine assessment of faculty performance and using those evaluations to determine whether a faculty member will be retained is not prohibited.3 Indeed, post-tenure review began to be discussed at most institutions when mandatory retirement was eliminated in the mid-1980s. By the 1990s, a significant number of legislatures, boards of trustees, and university administrators were making such reviews mandatory. This movement was fueled, in part, by the national cessation of tenure in Great Britain in 1988.4 By 1999 in the United States, post-tenure review was gaining such rapid momentum and widespread acceptability that the AAUP's committee on academic freedom and tenure issued a formal response that was endorsed by its membership at its 85th annual meeting5:
The Association believes that periodic formal institutional evaluation of each postprobationary faculty member would bring scant benefit, would incur unacceptable costs, not only in money and time but also in dampening of creativity and of collegial relationships, and would threaten academic freedom …. The Association emphasizes that no procedure for evaluation of faculty should be used to weaken or undermine the principles of academic freedom and tenure. The Association cautions particularly against allowing any general system of evaluation to be used as grounds for dismissal or other disciplinary sanctions.
Although on main campuses a faculty member's entire salary is often guaranteed by tenure, the more limited financial guarantee associated with tenure in medical schools has often been challenged.6 In 1996, these challenges triggered a report by the AAUP on compensation and tenure in U.S. medical schools in which there was acknowledgement that it was acceptable to modify the salaries of tenured medical school faculty, especially clinicians, on the basis of productivity.7 Two national conferences by the American Association of Medical Colleges (AAMC) on tenure8,9 further explored the relationship between tenure and compensation guarantees.
Whereas the AAUP statement and AAMC meetings focused on salary, the concept of tenure also addresses the right to hold an academic position and title. Post-tenure review is directed at this facet of tenure. In 1997, a survey was conducted by the AAMC, showing that 17 schools had put post-tenure review in place and that about 50% of all U.S. medical schools either had enacted or were considering some form of post-tenure review.10 As a result, a plenary session on the topic was planned for the 1998 national AAMC Faculty Affairs Development Conference in Annapolis, Md. This plenary involved a panel of faculty deans who had implemented post-tenure review, and it included the first author (L.S.). The results of the plenary, including the methodologies adopted and the preliminary outcomes, were summarized in the May/June issue of the AAMC's publication, Academic Physician and Scientist.10 A January 2007 survey that we conducted of faculty affairs deans through the AAMC Faculty Affairs listserve with e-mail follow-up requests to dean's offices showed that about 40% of 113 responding institutions (90% of the 125 U.S. medical schools) reported some form of post-tenure review, exclusive of annual merit reviews. Several medical schools no longer offer tenure, and these data must be interpreted in the context that for those schools, post-tenure review is not relevant. Therefore, currently about half of all medical schools with tenure mandate post-tenure review. Public schools are more likely to have post-tenure review than private schools. Regional differences are observed as well (Table 1).
Introduction of Post-Tenure Review at the University of Louisville
At the University of Louisville, post-tenure review was mandated in 1994 by the board of trustees.11 The unconfirmed rumor that circulated was that a trustee had observed a tenured professor mowing his lawn in the middle of a work day and took the issue to the board along with some literature on post-tenure review as an emerging national trend. The implementation of these reviews followed a longstanding tradition (since the mid-1970s) of annual reviews that served as the basis for merit raise considerations. All raises at the University of Louisville were based on merit.
Initially, the reviews were for all paid faculty, including those without tenure (term faculty, contract faculty with no defined term, part-time faculty) and were called periodic career reviews. Although their name hasn't changed, five years after initiation the reviews were limited to tenured faculty and thus took on the form of true post-tenure reviews.12 The reviews for all university faculty occur after every five years of service for every tenured faculty member, with the review cycle reset should a promotion action intervene. Reviews involve the multitiered system of all University of Louisville career (tenure and promotion) reviews, with the exception of requiring intramural rather than extramural letters of evaluation. In the school of medicine, the faculty member's portfolio, made up of a curriculum vitae, reprints (if applicable), and intramural or extramural letters, is reviewed first by all members of the faculty member's department, then by the department chair, the faculty affairs dean, and, finally, the school's promotions, appointments, and tenure committee, for recommendation ultimately to the dean. Unlike promotion and tenure, which involve the provost, president, and board, the dean is the final decision-making authority on satisfactory or failed reviews. Anticipating approximately 35 reviews per year, and the required administrative structure to provide oversight for that, in 1996 the first author (L.S.) was asked to serve as the first associate dean for faculty affairs in the school of medicine, with the task of putting post-tenure review in place. This was not a popular mandate among the faculty, and to increase its palatability, a focus on faculty development was adopted.
Ten years after the initiation of the post-tenure review process at the University of Louisville, this paper provides an update on the process and its outcomes in the school of medicine.
Post-tenure Review Criteria and Methodology
Unlike promotion and tenure reviews in the school of medicine, which require excellence in the greatest area of effort (teaching, research, or clinical service) and proficiency in all other areas of involvement, post-tenure review requires only proficiency in each area of involvement. Whereas pretenured faculty are required to carry an assignment in all three areas, once tenure is achieved, the only required area of involvement is teaching. Criteria for proficiency in each area are explicitly defined in school documents.
All post-tenure reviews originate in the faculty member's home department after notification by the dean's office that a review is required. Although all faculty in the department review each case and vote, the binding pass/fail vote is restricted to tenured professors for full professors under review, and to tenured associate professors and professors for associate professors under review. Portfolio materials reviewed include at least four letters of recommendation, which, as noted, may be from intramural sources; a current curriculum vitae; annual work assignment letters issued by departmental chairs; annual merit evaluations; teaching evaluations; reprints; and separate recommendations by the department chair and the faculty committee. All votes and administrative recommendations are cast in terms of either satisfactory or unsatisfactory. Faculty undergoing post-tenure review may examine any substantive material in their personnel file at any time, although the identity of the evaluators, with the exception of the chair, is kept confidential to the extent permitted by law. Once departmental recommendations are made, the school's promotion, appointments, and tenure committee reviews the dossier and makes a recommendation to the dean. Due process procedures are in place to address disagreements at different levels of the review and to offer protection for academic freedom.
In the case of an unsatisfactory evaluation by the dean, a faculty member is re-reviewed two years later as a special career review. Within 30 days after the negative review, the chair and the faculty member under review, with the assistance of the dean's office, collaboratively prepare a development plan, which must ultimately be approved by the dean. The plan includes specific and measurable requirements to be met within one year, although in special cases the dean may approve a longer remediation period. Although a university-wide faculty development approach was taken in response to failed reviews, the medical school in particular mandated that the plans meet four criteria. First, the plan must clearly state objective goals related to the area of deficiency to be met. Second, the faculty member must participate in specified developmental activities. Third, the institution commits to providing agreed-on resources and opportunities for the faculty member, and fourth, the month of the follow-up special career review must be specified.
Considerable effort is made to provide resources to the faculty member to meet the requirements of a successful review. For example, faculty members whose research productivity received poor marks might be given funds to attend seminars on how to write grants and papers and might enter a formal mentoring relationship with a funded investigator. For instance, an endowed chair was one such mentor, and the faculty member experienced an increase in publication rate from less than one publication a year before the review (the rate required to demonstrate proficiency in research) to between two and seven publications per year after the review, and this faculty member eventually received independent National Institutes of Health (NIH) funding. Others established long-term collaborative arrangements with their mentors. We observed that these faculty often brought with them classical lab skills and techniques that were no longer in vogue among junior faculty but that were, nonetheless, useful to the funded investigator's research program. These skills often brought to bear unique approaches to contemporary research problems.
After the first year, the faculty member has an additional year to demonstrate satisfactory performance, and then he or she undergoes the follow-up special career review. If the follow-up review is satisfactory, the next five-year review cycle begins. If the review is again evaluated as unsatisfactory, the career record of performance is forwarded to the dean for appropriate disciplinary action, which may, according to university guidelines, include proceedings for termination.
Termination of tenure at the University of Louisville can occur for the following reasons: incompetence, neglect of or refusal to perform one's duties, or immoral conduct. The basis for termination following a failed special career review would be incompetence. Procedures for pursuing this option are laid out in detail in university documents that preexisted post-tenure review and did not change with its adoption. They include discussions between the faculty member and appropriate administrative officers to seek resolution; the preparation of a written recommendation for dismissal from the dean to the university president and copied to the faculty member, laying out the reasons for the recommendation, with reasonable particularity; and a full set of appeals procedures that the faculty member may follow, including an appeal before the university board of trustees. Fortunately, the option of termination for cause has never been pursued after a failed post-tenure review. This does not mean, however, that faculty have not left, as detailed below.
The first analysis of the periodic career review program took the form of a report to the provost during the second year of implementation. The report noted that several faculty resigned or retired before their review, which was attributed to their desire to avoid the rigors of the post-tenure review process.13 It was further reported that 3 of the 23 faculty (13%) who did participate received ratings of unsatisfactory. One of these subsequently opted to retire, and the other two prepared faculty development plans in accordance with university guidelines as described above.
Subsequent experience was similar to these early years, although with fewer failures as faculty perhaps either increased their efforts or left the university. From 1999 through mid-2006, 240 regular five-year post-tenure reviews and six special reviews were completed. Among the five-year reviews, 96.3%, or 231, were satisfactory. Of the nine faculty (3.7%) who failed, six subsequently passed the special career review, indicating successful remediation. Of the remaining three, one resigned before the special review; one gave up tenure and switched to a clinical service track, thus precluding a special career review; and one special review is currently pending. One faculty member who failed the five-year review before 1999 also failed the special review, and he declared his intent to relinquish tenure two years hence for phased retirement.
Several indicators suggest that the faculty of the school of medicine have a high degree of satisfaction with the process that was put in place, given the realities of a mandated post-tenure review. General acceptance is demonstrated by the excellent compliance we have with the program, and the lack of opposition to it. Senior faculty who had not undergone a regular career (promotional) review in many years reported that “it felt good to get positive feedback and professional validation from other colleagues.”10 Other faculty with unsatisfactory initial reviews, like those described above, demonstrated success and believe their careers were revitalized. Indeed, an analysis of the publication record of faculty who underwent remediation in research shows an increase in publication rate that has been stable in the years after their reviews (Figure 1). Years later, these faculty also express gratitude despite an initial feeling of failure. It is generally thought that the process we put in place and the standards that we have established are fair and equitable, benefitting both faculty and the institution.
Observations and Conclusions
Overall, the post-tenure review process in the school of medicine at the University of Louisville has had several positive outcomes. Some of these are listed above for those faculty members who initially failed but later succeeded, as well as the reaffirmation felt by other faculty when their departments and the school gave, in effect, a “stamp of approval” for a job well done. Other less tangible positive outcomes also resulted. Faculty with waning research careers stepped up to the plate and took on heavier teaching and administrative responsibilities, reporting that they did not want to be perceived as not carrying their weight. According to reports provided by chairs,12 the departmental peer-review component of the reviews significantly contributed to the phenomenon of non-research-intensive faculty volunteering for increased teaching and administrative responsibilities and releasing research-productive faculty to engage in scholarly pursuits. The general research productivity of the faculty rose in the decade after implementation of post-tenure review (a tripling of the extramural funding, a threefold increase in the number of funded NIH grants, a 60% increase in publication rate, and an improvement in NIH rankings by more than 20 places among the 125 U.S. medical schools, from 95th to 73rd)14 because of several factors and, along with that, the self-esteem that came with being busy and making a contribution. Contributions were then recognized in a formal way every five years.
The manner in which the post-tenure review process at the University of Louisville School of Medicine was implemented, for every tenured faculty member, every five years, is time- and resource intensive. Out of the 182 career reviews (post-tenure, promotion, and tenure) done in the last two years in the school of medicine, 78 (43%) were post-tenure reviews. The school of medicine promotion and tenure committee meets monthly, and promotion/ tenure actions are processed after September each year and forwarded to the provost in January. Between February and August, the committee's work is dominated by post-tenure reviews. A comparable increase in workload is also borne by departmental committees and by the individual faculty members, staff, and chairs who are involved. Because of the magnitude of this effort, many schools at the university chose to do a triggered review that occurred only if a faculty member had a specified number of poor annual merit review evaluations. This triggered type of review is more in line with the recommendations from the AAUP5 to address the reality that “some tenured faculty members may, nonetheless fail to fulfill their professional obligations because of incompetence, malfeasance or simple nonperformance of their duties.”
We, however, believe there are benefits to the nontriggered, uniform way that we implemented post-tenure review in the medical school. The formal peer-generated reaffirmation of productive faculty would not have occurred if the triggered model of review had been adopted. In the triggered model, the review itself is a negative, punitive process, whereas in our model, post-tenure review is a routine, expected event that everyone goes through every five years. By mandating that all faculty undergo review, the process gently encouraged faculty to seek opportunities to become more involved in the school of medicine in whatever ways they could be actively engaged.
We believe that the key to the success of this program is its nonpunitive nature and the way the mandate to implement post-tenure review was executed. The focus on faculty development and the resulting reinvigoration of the careers of key faculty who had deficiencies put a positive spin on what otherwise would have been perceived as a top-down measure to increase faculty accountability. Indeed, even the AAUP response to post-tenure review5 acknowledges the value of post-tenure review as a means toward faculty development as long as academic freedom is protected in the process.
Is academic freedom undermined by post-tenure review at the University of Louisville? Chairs at Louisville have for decades provided annual work assignments to their faculty that detail involvement in teaching (for all faculty), research, and service (including clinical service). The requirement that faculty demonstrate proficiency in all areas of academic involvement and formally demonstrate it every five years was the major incremental change in scrutiny with the onset of post-tenure review. Due process precautions during the reviews and termination-for-cause processes have not been altered, and they still allow for robust protections. Accordingly, we believe that academic freedom has been preserved.