Posted: February 19, 2020
Sponsor: The Academic Freedom and Professional Status of the Faculty Committee
Proposed Policy (2/19)
Senate Presentation (4/15)
Senate Presentation (4/29)
Revised Proposed Policy (5/12)
Senate Presentation (5/13)
Pre-Vote Summary (5/17)
Comments posted below are totally anonymous unless you identify yourself in the actual posting.
The Resolution
Whereas it is necessary to have a clear and fair procedure for handling the tenure review process in the presence of ongoing or completed misconduct investigations;
Be it resolved that this proposed policy be added to the Faculty Handbook section on tenure.
Regarding Risa’s comment that:
“1. Creating this new apparatus will unfairly disadvantage faculty who are historically targeted for accusations and double standards: women, people of color, and faculty engaged in controversial teaching, research, or activism.”
People do not choose to be biased. It’s because we believe that we are *not* biased that bias affects our judgments. Right now, without the pause policy, bias is allowed to affect the tenure review process and subsequent forms of review.
Let’s imagine that a spurious allegation of harassment comes up during a tenure-review for a person of color. Right now, without this pause policy, the candidate’s colleagues deal with the allegation by psychologically compartmentalizing it. The colleagues defend the faculty member, claim that he/she is being targeted on the basis of race, and tenure is awarded.
In this scenario, the allegation, never really resolved, gets normalized, and normalized = in sync with usual white-supremacist logic. Whites, at least subconsciously, find non-whites to be “tainted” and “suspect.” So, while the non-white faculty member is righteously defended during the tenure proceeding, subconsciously, the colleagues are defending their “tainted,” imperfect, non-white assistant professor. Once this non-white has tenure, then the unresolved allegation follows him/her around, with his/her skin color, for the rest of their time at Cornell– the colleague “who may have” done this or that.
As colleagues made their determination about tenure before they got a clear yes or no about the harassment allegation, that allegation remains open in their minds. So, the colleague is tenured but disadvantaged potentially for the rest of his/her career, as he/she never gets to “close” the harassment case.
A consistent policy seems necessary and fair to the faculty person and administration.
Comment by Risa Lieberwitz
I will vote against the tenure pause proposal.
We do not need a new institutional layer of bureaucracy to deal with situations that rarely arise during a tenure process. The information provided to the Faculty Senate is that there are very few cases (on average, one case per year). These can be dealt with on a case-by-case basis to arrive at the best approach, rather than creating this new layer of a formal bureaucratic process. Further, it would be far more productive for departments, colleges and schools to develop other processes that encourage the timely resolution of conflicts or concerns long before the tenure review.
Most importantly, I have serious concerns about the unfair consequences that will likely result from instituting this tenure pause process:
1. Creating this new apparatus will unfairly disadvantage faculty who are historically targeted for accusations and double standards: women, people of color, and faculty engaged in controversial teaching, research, or activism.
2. The Cornell administration has stated that the data shows that these faculty groups are not disproportionately represented in cases alleging violations of Cornell policies. However, there was no specific data provided.
3. Further, data about how many allegations have been brought, in general, do not provide data about the likely effects of creating this new proposed “tenure pause” apparatus. Proposing a university-wide tenure pause structure does not make it objective, neutral, or fair. Rather, the proposed tenure pause policy creates a new process that invites allegations of wrongdoing (even if that is not the intent of the policy). This formal process will add an undue and unfair degree of stress and insecurity to all tenure-track faculty – and particularly, to tenure-track faculty who are the most vulnerable to being targeted or held to a double standard. This new forum for allegations of wrongdoing may include: allegations that dredge up conflicts that may have occurred in the past; allegations based on issues that have already been resolved; allegations that grow out of personal resentments; and allegations based on gender, racial, or political bias.
4. Additionally, the existence and the structure of this new formal panel will weigh in favor of creating a pause. Such a pause damages a candidate, regardless of the outcome of the pause (including a finding of no misconduct).
5. Thus, this proposed new structure is unfair. The increased stress and insecurity it creates will have a chilling effect on faculty in their teaching, research, and in their activities in shared governance and campus activism. In other words, this proposed tenure pause structure will have a chilling effect on academic freedom. The chilling effect will occur prior to the candidate’s tenure review and will continue throughout the tenure review.
6. Any issues that may arise during a tenure review can be dealt with on a case-by-case basis, with fairness and respect for all concerned. In the rare cases that arise, the department, college, or school can provide a tenure review candidate with adequate information about any concerns and ask the candidate to respond. This will then enable the dean/department chair/department to decide on the best course of action — which, where appropriate, could include instituting a pause or offering the tenure review candidate the option of a pause.
Risa is absolutely right to call attention to the potential for inequitable enforcement. This concern was taken into consideration by all those who worked on the proposal: the Senate’s AFPSF Committee, the University Counsel, and the Provost Office which, it should be stressed, includes the Office of Faculty Development and Diversity.
The conjecture that the mere existence of the policy will trigger spurious accusations is interesting and certainly a possibility. But so also is the conjecture that the policy will have a deterrent value because there would now be a systematic process for dealing with them.
Preferring a case-by-case process that is local (=chair + dean) overlooks the reality that the faculty and the university have a responsibility to ensure the integrity of the tenure process. That is why the DoF and the Provost are part of the Pause Panel. A broader panel would raise concerns about the confidentiality and privacy associated with our investigative processes.
I totally agree with Risa that any tenure pause can have negative side effects. But virtually every concern voiced in the Senate (retribution, career-damaging delay, etc) applies to the current ad hoc system with magnified consequences. That is because having no policy in place opens the door to the unfair evaluation of the candidate.
To those who argue that rumors and gossip will be worse for the candidate than a pause, I say: A mature responsible tenure review will ignore rumors and gossip. A student letter making allegations of misconduct has no value in influencing my tenure vote, if the student chose not to file charges. It is no different from a student who simply didn’t like the course or the instructor. It has some value, if a lot of other students wrote similar letters, but only in terms of the instructor’s teaching effectiveness.
No need for a pause. It is punishment without due process. I will vote against it..
The final policy to be voted on 13 May does not seem to have changed from February. Are there still opportunities for small edits (without the complexity of Faculty Senate votes) — e.g., to add a time limit to the pause (“no more than 12 months”) or clarifications (“in the case of ‘found not responsible, material in the dossier making allegations that resulted in a pause shall be removed”)?
Many of the commenters don’t seem to realize that tenure does not protect one from punishment and even dismissal. Tenure is about competence, not about personal behavior. The two issues are independent, and there is no reason to mix them together. It will only corrupt the tenure decision, and lead to personal vendettas as many people pointed out. Let the two processes proceed independently.
You are forgetting about research misconduct.
Here is a cooked up situation to make the point that your independence argument requires a rethink.
An assistant professor in the year just prior to the start of the review publishes a brilliant paper that is part of the dossier. Smooth sailing during the review in part because of the brilliant paper. However, in April just before FACTA an allegation is made that the brilliant paper is brilliant because of a plagiarized idea. This triggers a Policy 1.2 investigati0n that takes four months to adjudicate with a recommended sanction that is less than dismissal. Do you not think that the tenured voters in the Department deserve a second look at the case? Are you comfortable letting our most sacred process–the tenure review process–to proceed on the basis of false information?
Similar examples that relate to Policies 6.3 and 6.4 could be given that have the same “punch line”.
Nevertheless, thank you for bringing up this particular approach to such a difficult problem. It is most definitely worthy of consideration.
CVL
I agree that this situation is really tricky. I am not advocating for any particular solution, only for as much clarity as possible in the legislation. Requiring that references to charge of which a faculty member has been found not responsible be stripped from the tenure dossier is reasonable. Telling faculty that they cannot consider in the tenure decision the consequences of the actions that led to the accusation seems very tricky indeed.
Consider the scenario where a faculty member is accused of harassing a student. The reality of the situation is that the faculty member committed acts that were ill-advised, but did not rise to the level of harassment, and is thus found not responsible. Such actions might be damaging to the department’s reputation and hence function (e.g. the department gets a reputation as a place that is unfriendly to students and protects faculty over the concern of students). Is it appropriate to tell faculty that this is not appropriate to consider when deciding on tenure?
Most broadly, I am struggling to find any other examples of legislation that explicitly tells faculty that certain work-related conduct cannot be considered in deciding tenure.
Here are two cases that point to the complexity of the policy that we are trying to develop:
1. Information outside the tenure case triggers a pause and investigation after a departmental review. There is a finding of non-responsibility in the investigation, but there is also information brought forth that establishes behavior that some faculty may decide is not desirable in a colleague. As the policy is written now, the department faculty would not have an opportunity to act on this information.
2. Information arises early in the tenure case and triggers an investigation that results in a finding of non-responsibility, but again brings forth information that establishes behavior by the candidate that a faculty member decides is disqualifying for tenure (e.g. a faculty member could decide that persistent boorish behavior that does not rise to the level of harassment could still impair the ability of the candidate to be an effective instructor for all their students). As the policy is written now, the tenure case is supposed to move forward with all references to the alleged misconduct redacted. Is this hypothetical faculty member supposed to not consider this information in their vote? Are they not permitted to write that the reason for a negative vote is related to the behaviors that the investigation revealed (even if they have not been found to violate policy)?
I think the proposal on pausing tenure review when serious allegations, requiring a hearing, are made, is solid. You might consider adding the “requiring a hearing” language to the definition of serious allegations just to make it perfectly clear why the pause is required.
I think the Senate will need some data to debate this proposal in a fair and informed way.
As of now the consensual relationships policy has been in operation for about 18 months.
In this period of time, how many cases have been opened? Of those, how many were in a category one might call “harassment” (where the goal might actually be to disrupt or derail tenure, as an expression of anger after a relationship ended badly, but without any form of legitimate policy violation)? How many were in a category that one might call “potentially legitimate”?
I like it, but want to suggest that you consider one extra element:
* In a situation where the university makes a determination that the tenure candidate is guilty of the charge but is considering a penalty less than dismissal, an advisory vote by the tenured faculty should be solicited before the university reaches agreement on the disposition of the charges and punishment. This is intended to avoid situations in which the tenured faculty might feel that the behavior was so intolerable as to preclude consideration for tenure, while the university might perhaps conclude that although grave, the infraction would not normally preclude allowing the faculty member to remain, were tenure not on the table.
The core issue here is that if the university settles a case after making a determination of guilt, the tenured faculty will still be confronted with a dossier that now will include the elements of the case including the guilty finding. It would be undesirable to write for tenure letters in such a situation, only to have the case voted down over the same concerns that the university had “settled”. Accordingly, the tenured faculty should have a chance to comment on a proposed settlement, before the case is settled, as a way of avoiding what could otherwise be perceived as a form of double jeopardy.
My thought goes to whether the department faculty are informed that a dossier is being paused? To preserve confidentiality are they just told it has been paused/delayed? Department faculty are aware of how the process works and if they discuss and support a tenure/promotion case to go forward, they are going to be looking for a dossier to review and request for their vote, etc on a certain timeline and wondering where it is if they don’t see it come through for their action.
“thus setting the stage for rumors feeding into the decision process”– no, that’s what we don’t want. It seems to me this policy is designed to prevent just such rumors from potentially contaminating the process. Regarding the comment above, that “Pause policy is not consistent with innocent until proven guilty concept”– I can appreciate that pausing a tenure review might at first *seem* like punishment, like allowing allegations to delay or set back the tenure process. However, this pause policy is a way to insure “innocent until proven” not innocent. Allegations have considerable potential to affect a candidate’s tenure case. They *must* be taken seriously and resolved before the case proceeds. This proposed policy is less about protecting Cornell from potentially “guilty” candidates for tenure; it’s about protecting candidates from potentially underhanded attempts to derail the tenure process. This policy protects a candidate from rumors, suspicion, and the intense reactive attitudes that such allegations provoke– all of which have great potential to damage the integrity of the evaluation process. For a case in point, check out: this link.
Having been involved in dealing with the type of situation envisioned by this proposal, I think it is a sensible and reasonable attempt to improve our current policies. It is also sorely needed.
What about the Idea of giving the candidate the option to pause or move forward? If the candidate was confident of an exoneration, for example, they may want things to proceed. This would be tough if there were accusations or evidence in tenure-related documents that would then move forward in the process and likely impact judgements. I don’t think you could allow a candidate response to be included until things had been adjudicated. If the accusations and evidence sat outside of tenure-related materials then rumors would be the concern.
How do you consider cases where a letter levels an accusation, but the letter writer has already or decides to not pursue a formal complaint. This could happen with a Title IX complaint, for example. The University can choose to pursue on their own, but this decision is typically only made when there is a reasonable suspicion of ongoing risk to individuals on campus.
One issue to consider: If the allegations arise in the context of a student letter received in response to the request for input from students, and the allegations are not supported, then is that letter not included in the dossier after the pause? The guidelines say that no reference to the allegations would be allowed in the dossier if they are not supported, but the original letter would presumably raise the issue.
Pause policy is not consistent with innocent until proven guilty concept.
The solution much simpler if we allow the two processes proceed simultaneously and independently. Tenure does not protect anyone from punishment for misconduct.
This sounds reasonable on the surface, but what is the likelihood of the two processes really being independent? In particular, there is a considerable probability that the TT voters would be aware that the candidate is under investigation thus setting the stage for rumors feeding into the decision process. Do we want that?
CVL
It seems to me that this is a good observation but wouldn’t work in practice, at least not in the way you would expect. Once you write for external tenure letters, haven’t you signaled a willingness to award tenure if those letters are very strong? After all, they are a huge burden on the 13-15 people you will write to. You wouldn’t burden them this way if you were already certain that you cannot abide this candidate as a colleague because they seemingly deceived you and broke various rules at the university and department level.
So yes, if they are found to be totally innocent, you would want your tenure case to advance. We can’t allow empty allegations that were made purely as a harassment tactic by an disgruntled ex-partner or some other “enemy” to derail a legitimate tenure case for an innocent faculty member. But if the faculty member is determined to have violated the policy (and perhaps, violated your confidence, too), would you really vote to give him or her lifetime tenure? You might hesitate a long time over that question.
So I think a pause is unavoidable and very important in such a situation.