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Lex Collegii A Newsletter for Higher Education |
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Sample Article COLLEGIALITY AND THE QUARRELSOME PROFESSOR click here to purchase this volume or other issues of Lex Collegii Collegiality, along with civility and respect, vitally affect the performance of professors and enhance relationships with colleagues and students. Without collegiality, departments can develop camps of teachers who do not relate to each other. Fractious relationships can become so serious at times that they develop into significant differences on curriculum and program philosophy. These differences, if unchecked, can cause serious harm to the department, its faculty, and its students and can expose the college to legal liability. For example, Vanderbilt University was found liable to doctoral students in its graduate program in management when a court concluded that there had been a total collapse of the doctoral program. The collapse was caused by hostility and differences in the program, which became so great that professors began establishing different academic expectations based on their particular philosophy and students were never clearly informed about academic requirements. (Lowenthal v. Vanderbilt University, 1977) Collegiality is a difficult characteristic to judge, particularly since it may not be included in the often used tripartite criteria for the evaluation of professors: teaching, research, and service to the community. A few institutions, given the concerns about collegiality and interpersonal relationships within departments, have specifically added collegiality to their list of criteria to be considered for tenure or promotion. In its statement on professional ethics, the AAUP addresses the collegial responsibility of faculty:
Other AAUP documents frequently refer to the need for faculty to demonstrate respect for each other. Several faculty handbooks, in their criteria for promotion and tenure, address faculty and their interactions with colleagues. For example, one faculty handbook states that professional competence includes demonstrated professional and ethical relationships with colleagues and administrators. Similarly, some faculty handbooks address collegiality in statements on dismissal when they refer to relationships that violate professional ethics and expectations. Sometimes collegiality may be strained by diversity and differences over political ideas. Also, what may seem like collegial issues to some may represent issues involving academic freedom to others. Simply supporting views that are contrary to members of the department, or just being a gadfly, may reflect a professor’s views of academic freedom and may not adversely affect job performance. Academic freedom, however, is not unlimited. It protects ideas and research, but it does not protect actions that unduly create hostile and abrasive relationships with colleagues. Collegiality, therefore, may become an issue for some colleges in all of their personnel decisions, including those relating to hiring, promotion, and tenure. In some cases, it may also be a factor in dismissal proceedings brought against a faculty member. This article will examine collegiality as a factor in tenure and dismissal decisions. TENURE DECISIONS Fractious Relationships Frank Romer held a tenure track appointment in the classics department at Hobart and William Smith Colleges. During his sixth year of employment, he was reviewed for tenure through the college process, which included a departmental and college review committee and review by the president. Romer was evaluated on the three stated criteria in the faculty handbook: teaching, research, and service to the community. The college-wide tenure and promotion committee recommended 4-2 against granting tenure when it concluded that Romer’s candidacy was deficient in all three criteria. The president concurred, and Romer was given a terminal contract. As part of the review process, Rebecca Fox, the dean of the college, wrote to the college promotion and tenure committee expressing her concerns about Romer’s personal and professional relationship with another department member, Paula Sage. Fox said one student, who was serving on Romer’s tenure review committee, made a complete retreat from her classics studies because of the strain produced by the public enmity between her two teachers. Furthermore, Fox stated that although her assessment was purely advisory and should be used by the committee however it deemed appropriate, she believed that "the highly public nature of professor Romer’s and Sage’s problems with one another...is highly debilitating in terms of their relationships--both singly and as a department--to the community." Romer filed a grievance following the denial of his tenure. His grievance, which included 46 complaints, was rejected by the college grievance committee. He then filed suit, alleging, among other causes of action, a breach of contract. (Romer v. Hobart & William Smith Colleges, 1994) The essence of his breach of contract claim was that, in his tenure review, the college had used criteria that were not explicitly stated in the faculty handbook. Specifically, Romer argued that the college's consideration of his relationship with Sage did not fall within any of the three categories of criteria stated in the handbook. The federal trial court rejected the notion that listing specific criteria in the faculty handbook somehow limited the types of information that the college could assess in its tenure process. The court also noted language in other faculty documents which stated that relationships with students and faculty are an important aspect of a teacher’s function and that teaching involves not only one’s students but one’s colleagues and requires mutual respect and consideration. Further, the court held that the information on Romer and Sage did not relate solely to their personal relationship but included the effect that Romer’s problems with Sage had on his students, other faculty members, and the colleges as a whole. Finally, the court ruled that since Romer’s fractious relationship with a colleague was relevant to the written criteria, the college tenure and promotion committee did not abuse its discretion in using the information. A similar position on the contractual nature of tenure criteria was argued by Robert Bresnick, a nontenured professor in the department of dance and theater at Manhattanville College. After being denied tenure, he sued the college for breach of contract and breach of the duty of good faith and fair dealing. (Bresnick v. Manhattanville College, 1994) The college policies stated that the criteria for tenure were excellent teaching, scholarship and service to the college. The committee on faculty status voted 4-1 to recommend tenure for Bresnick. However, the provost and the president both expressed concerns about Bresnick's ability to work with colleagues. The president's concerns focused on Bresnick's unwillingness to work with colleagues in a sufficiently collegial and collaborate manner. Bresnick did not receive tenure. In his court proceedings, Bresnick argued that the college had used collegiality in its consideration, a criterion that was not one of the three established by college policy. The court rejected this argument when it affirmed that collegiality, as a matter of course, is part of the expectations of a professor.
The court also stated that it would not straitjacket a college in its interpretation of how to apply its criteria:
Trusting Relationships Cynthia Fisher, an assistant professor of biology, was denied tenure by Vassar College. Alleging sex discrimination among other claims of discrimination, she challenged the college's denial of tenure. She claimed that she was denied tenure because of her sex and marital status. (Fisher v. Vassar College, 1995) The federal trial court, after a three week trial, awarded Fisher substantial damages and ordered her reinstatement for two years. After that time she would be evaluated again for tenure. Vassar appealed the ruling. One reason Vassar offered for the denial of tenure was Fisher's evaluation on the leadership criterion, one of the four criteria used. The senior members of the biology department concluded that in the leadership area, Fisher was a great disappointment. Their report stated: "Part of Ms. Fisher's problem seems to be that she has difficulty in establishing straightforward, open, trusting, collegial relationships with others in the department." The federal appellate court reviewing Fisher's favorable district court decision, emphasized the finding about collegiality when it noted that Fisher's colleagues were in the best position to assess her collegiality and that:
After reviewing all of the evidence in the case, including Fisher's leadership and collegiality evaluation, the court sustained Vassar's decision to deny Fisher tenure. The opinion suggests how some courts rate the importance of collegiality in peer review decisions, and the value they may place on peer assessments of collegiality. DISMISSALS AND COLLEGIALITY Dismissal proceedings place the burden on the college to prove that the professor should be dismissed pursuant to the appropriate college criteria. Some faculty handbooks are quite explicit about dismissal criteria, while others retain the more frequently used grounds of incompetence, immorality, and insubordination. These general terms then must be interpreted through the dismissal process by the bodies reviewing the charges. Some colleges do include the lack of collegial relationships and the inability to work within a department or the college as grounds for dismissal. Several cases support this decision. Acerbic and Anonymous Letter Sometimes the lack of collegiality and peer interaction is reflected in written documents or allegations concerning colleagues. Robert Yackshaw, a tenured professor in the Department of English at John Carroll University, was dismissed from the university due to his accusations against his faculty colleagues. He had been a member of the faculty for 30 years. In November 1986, the president of the university received an anonymous letter charging several members of the department of English with sexual harassment, mental illness, improper sexual conduct with students, and homosexuality. After an investigation, the administration determined that Yackshaw had written the letter. When confronted with the charge, Yackshaw denied it, and the university commenced dismissal proceedings. One of the reasons Yackshaw was charged with writing the letter was his history of similar behavior. The faculty committee that reviewed the dismissal charges, heard the testimony of 15 witnesses, eight for the university and seven for Yackshaw. The committee concluded that there was substantial evidence that Yackshaw had written the letter, and it recommended dismissal by a 4-1 vote. The committee concluded that the evidence clearly and convincingly pointed to Yackshaw as the author of the anonymous acerbic letter. The committee recommended that Yackshaw's behavior constituted moral turpitude, which, according to university policies, warranted dismissal. The university board of trustees accepted the recommendation. Yackshaw then challenged his dismissal in court. (Yackshaw v. John Carroll University, 1993) The trial court agreed with the university that there was substantial evidence to support the dismissal. The court also stated that it should not become enmeshed in the academic decisions of colleges. Yackshaw appealed. The appellate court sustained the college's decision and agreed that there was substantial evidence that Yackshaw had authored the letter and was guilty of moral turpitude. Colleague Criticism In Sinnott v. Skagit Valley College (1987), William Sinnott, a tenured welding professor, was dismissed for insubordination. One of the charges against Sinnott related to his repeated criticism of his colleagues, both in private and in public. Prior to Sinnot's dismissal, a college administrator had written Sinnott warning him about his repeated attempts to discredit other instructors in the department. The letter stated that these efforts were "nearing, or may have even reached, a level that is sufficiently unprofessional to warrant disciplinary action." Despite multiple warnings, Sinnott continued his criticism and finally conducted a press interview, in which he criticized the standards of his colleagues and their educational backgrounds. After Sinnott refused to agree that he would no longer make such comments, the college dismissed him. Sinnott challenged the dismissal in court. Several instructors testified that they did not get along with Sinnott and in fact had left the department because of his abrasive comments. After reviewing all the evidence, the court determined there was sufficient evidence to support Sinnott's dismissal for insubordination. Morale and Infighting The case of Kelly v. Kansas City Community College (1982) demonstrates the essential need for department and program colleagues to work together. In this case, two nursing instructors, Evelyn Cochran and Veronica A. Kelly, continually challenged the nursing director's authority and refused to cooperate with colleagues. Specifically, Cochran and Kelly were accused of being uncooperative with other instructors in the nursing faculty and of refusing to provide them with relevant information, including tests. Cochran and Kelly apparently also pressured staff members to align with them. The director of the program, Donna Hawley, also claimed that there was constant sniping in staff meetings, and that the meetings were tense and uneasy. The cumulative effect of these incidents was to create a severe morale problem within the program, prompting the state board of nursing to conclude that unless the faculty problem was solved, the nursing program would be closed. By the end of the 1977-78 academic year, Hawley recommended terminating Cochran and Kelly. When the dean rejected this recommendation, Hawley resigned and was replaced with Lorene Meagher. Meagher apparently did little to reduce the department tension, and the uncooperativeness and derogatory comments about staff members continued. The state board of nursing, after an on-campus visit, concluded that the critical issue was the problems of faculty dissension and that this faculty problem must be solved, or the program would be closed. This time the recommendation to terminate Cochran and Kelly was accepted by the dean and the president. The grounds for termination related to their behavior and its adverse consequences on the nursing program. Following notice of the decision, the two instructors requested a hearing. The hearing committee recommended by a 2-1 vote that their contracts should be renewed. The board of trustees, however, rejected this recommendation and terminated Cochran and Kelly. Cochran and Kelly challenged their termination in court. The trial court ruled for the university, and they appealed to the Kansas Supreme Court. The Kansas Supreme Court sustained the decision of the board of trustees to terminate the two faculty members, finding that the two instructors had engaged in conduct detrimental to the nursing program and had demonstrated an inability to cooperate with and maintain harmony among the staff. In fact, the court said:
In concluding its decision, the Kansas Supreme Court noted that "a good school is dependent upon the Board being able to terminate teachers who do not meet the standards set by the Board." PREVENTIVE PLANNING Clearly the ability to work with colleagues can be a factor in any employment decision, including renewal, promotion, tenure, and dismissal. Colleges have been reluctant to employ this criterion because it generally is not included in the criteria for rank or tenure or as a grounds for dismissal. Collegiality, however, has been used by some colleges and has been sanctioned by the courts. If a college determines that collegiality and working relationships with colleagues are an important consideration in employment decisions, the faculty handbook should include such requirement as part of its definition of criteria for advancement or for termination. The negative aspects of collegiality demonstrate the legitimacy of its use as a criterion. When abrasive relationships prevent colleagues from working together productively, the college, faculty, and student learning can be jeopardized. Several cases provide evidence of these adverse consequences. If a colleague has demonstrated a lack of collegiality that is harmful, the first option is to attempt remediation of the behavior. If remediation is impossible, then it is probably within the general intent of most college policies that such behavior can and should be considered in personnel decisions. --Kent M. Weeks Click here to order other issues of Lex Collegii Click here to purchase a subscription to Lex Collegii SELECTED BIBLIOGRAPHY Cases Romer v. Board of Trustees of Hobart & William Smith Colleges, 842 F. Supp. 703 (W.D.N.Y. 1994). Bresnick v. Manhattanville College, 864 F.Supp. 327 (S.D.N.Y. 1994). Fisher v. Vassar College, 66 F.3d 379 (2nd Cir. 1995). Kelly v. Kansas City, 648 P.2d 225 (S.C. Kan. 1982). Sinnott v. Skagit Valley College, 746 P.2d 1213 (Wash. 1987). Smith v. Kent State University, 696 F.2d 476 (6th Cir. 1983). Yackshaw v. John Carroll University, 624 N.E.2d 225 (Ohio App. 1993). Articles and Books Brooks, B. G., "Adequate Cause for Dismissal: The Missing Element in Academic Freedom," 22 Journal of College and University Law 331 (1995). Eames, P., and Hustoles, T. P., "Legal Issues in Faculty Employment," National Association of College and University Attorneys, 1989. Lovian, T., "Grounds for Dismissing Tenured Postsecondary Faculty for Cause," 10 Journal of College and University Law 419 (1983). Olswang, S., and Fantel, J., "Tenure and Periodic Performance Review: Compatible Legal and Administrative Principles," 7 Journal of College and University Law 1 (1980). Weeks, K., "Tenure, Dismissal, and Other Sanctions," 15 Lex Collegii (Winter 1992). Weeks, K., Faculty Evaluation and the Law, College Legal Information, Inc., 1996. Weeks, K., Faculty Employment Policies, A Forms Manual for College Decision Makers, College Legal Information, Inc., 1996. |
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