Appeals of Denials of Promotion and/or Tenure

Candidates may appeal the denial of a request to be considered for review (policy reference), the denial of Emerita/Emeritus status (policy reference), and the denial of promotion and tenure. This section deals only with denial of promotion and/or tenure (policy reference).

A. Grounds for Appeals (policy reference)

The two bases for appeal are: violation of substantive or procedural due process. Neither permits substituting the academic judgment of a new committee for the judgment of those in the original review process.

A substantive due process violation refers to decisions that are based on an illegal or constitutionally impermissible consideration, such as the candidate’s gender, race, age, nationality, handicap, and sexual orientation or on the candidate’s exercise of protected First Amendment rights (e.g., freedom of speech). Substantive violations also arise when the decision is considered arbitrary or capricious.

Violations of procedural due process arise when the decision was influenced by failures to take a procedural step or fulfill a procedural requirement stipulated in the Campus APT policy. Thus, these violations pertain to the formal conduct of the review.

In each case, the appeal rests on claims that a violation occurred that unduly influenced the decision. The redress for any appeal is to correct the procedural or substantive error by returning the case to the site at which the error occurred and correcting it.

B. Avoiding Situations that Could Lead to Appeals

Contentious negative decisions that lead to appeals have a detrimental effect on the functioning of a department. Units should examine their guidelines and expectations for candidate review to ensure that they meet University standards. Candidates should be informed of these guidelines at the time they are appointed (policy references #1 and #2) and the processes should be reviewed with candidates at the inception of their reviews. Units can also facilitate the eventual promotion and tenure review process by giving special attention to the process of pre-tenure review and by informing junior faculty of changes in the Department’s directions and expectations. The single most frequent reason for an appeal is the claim by the appellant that he or she was misinformed and/or received inappropriate or no mentoring..

There are some recurring procedural issues that arise in appeals cases. Not all of these will be legitimate bases for appeals, but they are problematic. The errors arise from:

1. Failure to set a deadline for completion of steps in the review process, e.g., when a candidate needs to produce all the material needed for review;
2. Failure to set guidelines about the amount of material (scholarly publications, teaching dossier) that will be made available to external reviewers and about the sources of decisions (candidate, Review Committee or both) about what and how much material should be sent;
3. Misunderstanding or inconsistencies in the way external reviewers are selected (e.g., that the Unit is not obligated to select every reviewer nominated by the candidate);
4. Failure to include all the necessary queries in the letter to reviewers, particularly the judgment whether the candidate would be promoted to the same rank at the reviewer’s institution;
5. Failure to provide the Summary Statement of Personal Achievements to the candidate two weeks before the departmental review. Problems also arise if the candidate’s objections are not acknowledged in the Summary Statement and included as a separate attachment to the report (policy reference).
6. Failure to allow the candidate to send a memo to the unit administrator with updates to the c.v. during the review process and failure of administrators to forward those updates. Note that the deadline for receipt of updates is the date on which the dossier is sent to the Associate Provost’s Office for distribution to the third level of review.
7. Failure to notify the candidate in writing of the outcome of the review process at each level of the review. This letter must include the specific vote and a brief synopsis of the reason for the decision (policy reference). This problem obviously does not affect the voting process.
8. Premature advice on withdrawal. Often negative letters, a large minority of negative votes, or lack of support from an administrator appear to be harbingers of later denials. Remember that there can be six different sources of decision making (3 APT Committees, Chair, Dean and Provost/President) and cases with dissenting views do make it through the process. A suggestion for early withdrawal often creates the perception of bias and an appeal.
   

Administrators and faculty committees are responsible for insuring that all candidates receive fair and impartial treatment. They should deal with perceived violations either within their committee or through the administrative structure as soon as the perceived violations occur. It is recommended that the Chair of the APT Committee inform the voting faculty about these responsibilities whenever cases are reviewed (Senate Document No. 99-00-13).

The faculty member who believes that a substantive or procedural violation has occurred in a meeting is responsible for objecting at that time and asking for a resolution of the problem. Should the faculty member conclude later that a substantive or procedural due process error has occurred, it is imperative that the faculty member inform the Department Chair, the Dean, or the Associate Provost for Faculty Affairs of the problem and seek a resolution (Senate Document No. 99-00-13).

C. The Appeals Process

1. A request for an appeal hearing must be made in writing to the President within 60 calendar days of receipt of notification of the final decision not to grant a tenured appointment or a promotion (policy reference). The letter should specify the exact grounds for the appeal and it should focus on the grounds permitted by University policy.
2. The President then decides whether the grounds for the appeal are likely to fall within the grounds stipulated by the policy. If the request for a hearing to consider the merits of an appeal is granted, all the supporting material for the appeal must be submitted to the Associate Provost for Faculty Affairs no later than 120 calendar days after notification of the final promotion decision (policy reference).
3. The Appeals Committee receives the supporting material and then meets to examine the documents and to interview people who have information relevant to the appeal (policy reference). Upon completion of the investigation, the Committee prepares a report to the President based on the weight of the evidence before it (policy reference). The report should include their findings with respect to the grounds for appeal, and, where appropriate, recommendations for corrective action, which may include return of the matter to the stage where the error was made and action to eliminate the harmful effects the error may have had on the review process. The Appeals Committee does not decide on the merits of the case for promotion. It merely evaluates whether there is sufficient evidence for the claim that there was a substantive or procedural error.
   
4. The President makes the final decision whether to accept the Appeals Committee’s analysis of the validity of the appeal and their recommendations for corrective action (policy reference). Under no circumstances does the President grant promotion or tenure at that point. The case is remanded for re-review to the step where the error occurred.
   
5. The decision during the re-review is based on judgments of the candidate’s accomplishments at the time of the original review.
6. If the appeal will not be completed before the expiration of the appellant’s term of appointment, the appellant may request the President to extend the contract an additional year with the understanding that this extension does not produce a claim to tenure through length of service (policy reference).

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