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Faculty Forum Papers


"WAIVER OF CANDIDATE ACCESS
TO LETTERS OF EVALUATION IN
PROMOTION AND TENURE DOSSIERS:
TWO OPPOSING VIEWS"



"In Support"					"In Opposition"
	Linda Blythe					Court Smith
	A. Morrie Craig
	John Fryer
	Joe Hendricks
	Ken Krane
	Henry Sayre

April 1991


EDITOR'S PREFACE

The two companion pieces which comprise this issue of Faculty Forum Papers were invited by the Faculty Senate Executive Committee: a statement in support of the waiver of access provision from Graham Spanier, Provost and Vice president for Academic Affairs, and a statement in opposition from Court Smith, Department of Anthropology. Under the subsequent coordination of John Dunn, Associate Vice President for Academic Affairs, six faculty members were invited to draft the statement in support. The ensuing documents are intended as an essential component of the final resolution of an issue which has stirred considerable controversy and debate on the OSU campus for several years. A faculty opinion ballot is attached, and provost Spanier has indicated that the outcome of that ballot will heavily influence the administration's continuation or discontinuation of waiver policy as it now stands. Hence, your careful reading, consideration, and discussion of the relative merits of the opposing arguments presented here is strongly encouraged as preparation for your vote.

The two papers were authored independently. Each prime author (or coordinator) was given free reign in terms of both style and content. Neither, party, by editorial discretion, was given access to the other's finished product for purposes of revision or expansion. The fact that many points of argument appear in common is a result of natural coincidence, not of prestructured outline or of ongoing mutual consultation.

Order of presentation follows the formal debate standard of Affirmative - Negative.

Finally, a warning about semantics is in order. Common campus parlance identifies the issue in question as the "waiver of confidentiality" issue, and each document herein makes some use of that terminology. Quite to the contrary, technically speaking, an individual who utilizes the current provision does not "waive" confidentiality of letters of evaluation, but, rather, authorizes it. What exists prior to the candidate's signing of a waiver agreement is his/her access to the entire dossier; what exists following signature is his/her abrogation of the right to view letters submitted by specified referees. The correct terminology, therefore, is "waiver of access" rather than "waiver of confidentiality." An awareness of this local linguistic oddity may assist the reader in evaluating an issue otherwise prone to eliciting mild confusion.

Gary H. Tiedeman, Editor
Faulty Forum Papers






In Support:

Confidentiality and the Promotion and Tenure Process:
The "Waiver of Access" at OSU


Confidentiality in the promotion and tenure process is of increasing concern to faculties and administrators throughout the United States. Ultimately the central issue concerns the desires for fairness on the one hand and candor on the other. Often these goals are perceived as being in conflict, but this need not be the case. The common objective of faculty and administrators is a system in which candidates can be assured of fair and impartial evaluations of their credentials. We believe that a system that includes an optional Waiver of Access can be both fair and impartial, and that it can work to the advantage of candidates for promotion and tenure.

By signing the Waiver of Access, candidates voluntarily waive the right to review letters of evaluation solicited on their behalf on or off campus in the process of a review for consideration of promotion and/or tenure. The candidate retains the right of full access to evaluations and recommendations by the department chair or head, departmental and college promotion and tenure committees, dean, and provost.

The use of the Waiver of Access at OSU has a short but successful history. The first discussion regarding the Waiver occurred during the 1986-87 academic year, when OSU's new promotion and tenure policies were being formulated. The discussion included an open forum sponsored by the Faculty Senate, study by a Faculty Senate committee, joint meeting between the Faculty Senate and Administrative Promotion and Tenure Committees, two debates at Faculty Senate meetings, a campus-wide faculty survey, and numerous discussions in the Dean's Council, the University Administrative Promotion and Tenure Committee, and other administrative groups.

The faculty survey response and Faculty Senate votes were almost evenly divided on use of the waiver. Many department heads and deans expressed strong sentiment that confidential peer review should be available to faculty members who choose to exercise this right. Given this background and with the urging of many administrators and faculty, President Byrne elected to make the Waiver of Confidentiality available.

The use of the waiver has coincided with an increased approval rate and a decreased number of appeals. Since 1987-88, the first year the waiver was implemented, the approval rate of dossiers at the central administrative review level has improved from less than 70% to well over 90%, a dramatic increase. The record also suggests that there is no penalty for choosing to request that letters be open. In 1987-88, approximately 85% of the candidates signed the waiver. Of the 11 individuals who did not sign the waiver, a positive decision was made in nine cases, a proportion similar to the approval rate for those that did sign the waiver. In the last two years, similar internal records have not been maintained to avoid any potential bias, but the pattern is believed to be the same. In addition, fewer faculty have found it necessary to initiate promotion and tenure related grievances since implementation of the voluntary waiver, an indicator that faculty have found the review process to be fair.

We believe a system that includes the waiver offers several advantages:

(1) In most disciplines, confidential evaluations are standard practice. In these disciplines, strict confidentiality is standard practice in reviewing manuscripts, research proposals, career development, awards etc. Reviewers are accustomed to writing such evaluations, and scholars are accustomed to considering and, if necessary, rebutting them.

(2) Candidates may regard the lack of confidentiality as an impediment. Some candidates may feel that confidential letters encourage more candid and thus often more significant comments. Denying such candidates the option of confidential letters may be perceived by them as weakening their chances for promotion and/or tenure. The Waiver must be available as an option for those candidates who feel it is beneficial. It is unjustifiable to force such candidates to participate against their will in an open process, which they believe may place them at a disadvantage. Candidates must have the option to choose the system that, in their opinion, will result in the strongest dossier, given practices of their discipline.

(3) Without the Waiver, it may be difficult to attract qualified and willing reviewers. Certainly one does not wish to encourage irresponsible reviewers who hide behind the cloak of confidentiality to offer unjust criticisms of a candidate. Nevertheless, in many fields it may be difficult to attract competent reviewers without confidentiality. In an open system, forcing the candidate to settle for mediocre reviewers may weaken the case.

(4) Faculty and Administrators may give more weight to confidential letters. Administrators and promotion and tenure committee members may give more weight to confidential letters. In these cases, strong confidential letters from outside reviewers may serve to help insure that the process of review by administrators and colleagues is as objective as possible. It is entirely possible that those involved in the promotion and tenure process - administrators as well as faculty members - will attach greater credence to letters which adhere to standards of confidentiality. Confidentiality may work to the candidate's favor in the face of disparate opinion. Neither praise nor criticism are as easily discredited when letters are intended to be confidential.

(5) Without the Waiver, it is difficult to obtain candid comments from students. OSU regulations stipulate that input from students is required in matters of promotion and tenure, but anonymous written evaluations are not permitted. Students who know that a faculty member has full access to letters of evaluation are unlikely to offer significant comments. In an open system, negative letters of evaluation from students will be rare and every open dossier will include only positive student letters. As a result, the student evaluation component of the P&T process will be weakened and will be largely ignored.

Although we believe the advantages of confidential evaluations far outweigh any limitations associated with their use, we also recognize that some conditions regarding the use of the waiver may require further study.

(1) The candidate must give informed consent. The present Waiver of Access document provides guidance to the candidate in making an informed decision. There may need to be more detailed arguments or and against the Waiver presented to the candidate. Such a document should be developed in consultation with the Faculty Senate's Promotion and Tenure Committee and reviewed by the Faculty Senate.

(2) Candidates should not feel coerced to sign the waiver. There is a general perception that administrators prefer confidential letters of evaluation. It must be made clear to all that the choice of signing the Waiver is the candidates' alone. The department chair may offer the pros and cons of signing the waiver, but should not attempt to influence the candidate. Regardless of the candidate's decision, the integrity of the review process should be maintained.

(3) The candidate should be able to participate in the selection of names from the pool of outside evaluators. Current guidelines call for participation of the candidate in the process of selection of outside reviewers. Further discussion of the process may be called for. Letters should not be requested from reviewerswith whom the candidate has professional disagreements. When candidates are asked to provide a list of names for the pool of reviewers, perhaps they should also be asked for names to be excluded.

(4) Promotion and tenure decisions require peer input. OSU policy indicates clearly that the promotion and tenure guidelines for each college shall insure input from peers. Given the confidential nature of letters solicited under the Waiver of Access policy, it is essential that department/peer reviewers be selected carefully. OSU is proud of its faculty's involvement in the governance of the University and believes that decisions concerning composition and selection of P&T committee members should be reviewed by the unit's faculty and primary administrator to insure that the method of selection is fair and impartial.

(5) The reviewers should be asked primarily for an evaluation on the candidate's work and its impact on the profession. Further discussion may be called for on the question of whether outside letters should consider questions such as whether the faculty member being reviewed would receive tenure or promotion at the institution of the reviewer. OSU faculty and administrators may not be familiar with standards for promotion and tenure at the reviewer's institution. It may be difficulty, therefore, to offer rebuttal to such comments even when the institution is known.

(6) The candidate must have the opportunity to offer a written rebuttal to the letters of evaluation. To facilitate this process, the department chair (or the chair of the departmental P&T committee) should prepare for the candidate a summary of the positive and negative comments made in the letters. Current guidelines provide that the summary statements and letters of recommendation provided by department and college committees, and department and college administrators, be open for review. Such summary statements include a review of the content (without attribution) of outside letters. There may need to be more specification in the guidelines about the extent of such summaries. While candidates now have the opportunity to rebut these summary letters, the guidelines may need to be revised to specifically present the candidate with the opportunity to comment on such letters.

Recent court cases have held universities accountable for abuses of confidentiality in the promotion and tenure process. Confidentiality has in rare instances served as a means to exclude underrepresented groups, specifically minorities and women, from the ranks of senior faculty. We abhor such abuses of the legitimate process of evaluation. Our goal is to give candidates every benefit available in the promotion and tenure process. We believe that an optional Waiver of Access is consistent with this goal.


							Statement Prepared By:

Linda Blythe A. Morrie Craig John Fryer Joe Hendricks Ken Krane Henry Sayre
_________________________________________
In Opposition:

Position to Remove the Waiver from the Promotion and Tenure Review Process


We should return to the policy used successfully at OSU prior to 1986 that allows access by the faculty member to all information used by the University in performance, promotion, and tenure evaluations. No personnel records should be concealed from the person which form the basis of these deliberations. This principle was part of the personnel evaluation process at Oregon State University until the current administration instituted "a voluntary waiver of confidentiality" for outside evaluation letters used in promotion and tenure decisions.

Oregon law does not support the current use of confidential waivers. The faculty have debated this issue many time since 1987, and in each case a majority supports making all information used in the review process available to the person being reviewed. There is no evidence showing that review information provided with a promise of confidentiality is better than evaluations where there is openness.

Why support this position?

1. It is Oregon Law. ORS 351.065 and State Board of Higher Education Administrative Rule 580-22-075 state, "When evaluating employed members, the Board, its institutions, schools, or departments shall not solicit nor accept letters, documents, or other materials, given orally or in written form, from individuals or groups who wish their identity to be kept anonymous or the information they provide kept confidential, except for student evaluations made pursuant to rule 580-22-100."

State law does not provide for waiver of this right. The current administration seeks to impose confidentiality without proper legislative or judicial authority. The Faculty Senate has not received a report from the administration on the December 9, 1987 request for an Attorney General opinion on the legality of the confidential waiver. The administrator's confidentiality waiver could cause significant State liability and expense.

The State Board of Higher Education argued the need for confidential peer reviews before the Oregon Legislature when the rules for evaluation were first proposed. Legislators rejected their arguments by passage of the prohibition on confidential information in personnel files (Recommendations from Promotion and Tenure Committee to Faculty Senate President, November 24, 1987, p.4).
2. The majority of faculty have consistently opposed confidential letters. The Faculty Senate at the June 7, 1990 meeting voted 75 to 9 to affirm its opposition to the waiver of confidentiality. The Provost (Memorandum of July 25, 1990, p.1) in responding to the Faculty Senate action summarizes previous deliberations on this issue and cautions against changing the policy"…established after such an extensive process on the basis of the very limited discussion that occurred in the June meeting…" The Provost indicates that there was "…strong sentiment among administrators on campus that confidential peer review should be available to faculty members who desire it…"

Contrary to the implications of this memorandum, this issue has been debated often and extensively. The majority of faculty have consistently opposed confidential letters (Faculty Senate Minutes and Faculty Senate Promotion and Tenure Committee memoranda and annual reports). The Faculty Senate Promotion and Tenure Committee reviewed the waiver issue in 1987-88 and removed language allowing for confidential letters submitted in promotion and tenure guidelines drafted by the Provost's Office. The Faculty Senate defeated motion 87-442-6 (November 5, 1987) to add language restoring confidentiality to the promotion and tenure guidelines. A survey of faculty who participated in a Faculty Senate sponsored forum on the promotion and tenure guidelines, before the November 1987 meeting, showed faculty opposed, 2 to 1, to confidential letters. At the January 14, 1988 Faculty Senate meeting, "No motion was made to reinstate the waiver." The Promotion and Tenure Committee sponsored motion 89-457-03, which opposed use of the waiver until the legal status was settled. This motion passed unanimously at the April 6, 1989 Faculty Senate meeting.

3. Faculty do not perceive the waiver as free choice. While the administration, both in thought and deed, emphasizes the confidential waiver as a right, those signing the waiver do not see themselves as exercising a right or free choice. Those signing the waiver feel intimidated to sign it. They fear that if they do not sign it, their promotion package will be viewed in a discriminatory way against them.

The Memorandum from Promotion and Tenure Committee to Faculty Senate President (November 24, 1987, p.3) states, "During the 1986-87 promotion evaluation process, faculty members who signed the waiver (versus those who did not) were clearly identified. Faculty Senate representatives observed that signing, or not signing, the waiver often was noted and apparently considered by the Administrative Promotion and Tenure Committee in their review of candidates' dossiers."

4. Confidentiality cannot be guaranteed. The Supreme Court of the United States unanimously ruled in January 1990 that universities accused of discriminating in tenure decisions must make relevant personnel files available to federal investigators (See 110 S.Ct. 577 [1990]). Because of the issues in the case, the court did not indicate whether this applied to other jurisdictions or the individual involved. The Court's decision raises the question of whether confidentiality can be promised to writers of letters of reference (Chronicle, Jan. 24, 1990, p. B1; ACADEME, May-June 1990, pp.31-35; and AAUP, personal communication).

Many universities and academic organizations argued before the Supreme Court in support of confidential peer review. The Equal Opportunity Employment Commission and many civil rights groups filed briefs arguing that secrecy can be used as a shield for discrimination. The Supreme Court emphasized the need to prevent discrimination. It argued that, "The costs that ensue from disclosure, however, constitute only one side of the balance. As Congress has recognized, the costs associated with racial and sexual discrimination in institutions of higher learning are very substantial. Few would deny that ferreting out this kind of invidious discrimination is a great if not compelling governmental interest" (See 110 S.Ct. 577 [1990]).

5. Candor does occur in open review processes. Confidential letters are alleged to provide more objective data and allow reviewers to be more candid in their appraisals. Evidence to support this assumption was not presented to the Supreme Court, and Justice Blackmun described this claim as "speculative." Bednash (1989, p.323) finds from her study of highly selective liberal arts colleges that offer half their degrees in arts and science, "Confidential review processes are not a prerequisite to selectivity."

Universities find that openness "…boosts faculty members' morale and their confidence that fair decisions are being made" (Chronicle, February 2, 1990, p. A19). The University of North Carolina, Chapel Hill, has had an open system for a decade. An attorney for the University believes "…the quality of external letters is about the same as it was in the years when confidentiality was the rule." During the time open letters were used at OSU, letters did provide evaluation, and the process was selective. Data provided by the Provost (Memorandum July 25, 1990, pp. 2-3) show that faculty who do not sign the waiver are promoted at the same rate as those who do.

Some assert that with disclosure, letters of reference will not be forthcoming. The University of Alaska reports a 10% refusal rate with a process that not only allows candidate access to files but permits choosing public committee deliberations (Chronicle, February 14, 1990, p. A21). When Oregon State University did not use confidential letters, no promotion and tenure dossier failed to have adequate letters of reference.

6. Maintaining trust. Operating under a policy of secrecy can hurt an institution. Secrecy limits the openness and reasoned discussion that are the hallmark of a university. Bednash (1989, pp. 323-4) notes, "Reviews conducted in a closed, confidential manner can increase the potential for inaccuracies, unchecked biases, or procedural inequities." Confidential letters breed lower morale and distrust. The OSU administration continually assures faculty of fair treatment irrespective of whether the waiver is signed or not. Yet, when information can be presented against an individual in secret, it destroys the confidence people have in fairness and openness.

7. Confidential letters are not used like peer reviews. It is argued that confidential letters of evaluation are modeled after the peer review process. The peer review process is not always confidential. Some scientific journals encourage reviewers to identify themselves. In the peer review process, even when reviews are confidential, the person or persons being reviewed receive exact copies of what is said in the reviews, with identifying information removed.

The peer review process is designed to help authors and proposal writers improve their submission. Peer reviewers have the goal of being constructive. Confidential letters are not used in this manner. For a person to effectively rebut negative information they need to know "…the conditions under which a critical comment is made and by whom…" (Memorandum from Promotion and Tenure Committee to Faculty Senate President, November 24, 1987, p. 3).

8. "Major" universities allow access to letters of evaluation. Typically, the referenceto "major" or "leading" universities is used for the purpose of connoting that the best universities use confidential peer review. This gives the appearance that those who do not are somehow inferior. Many major colleges and universities do not use confidential letters (Bednash, 1989). These include the University of North Carolina, Florida State University, and public universities in Tennessee and Alaska.

Major universities have argued their preference for confidential peer review before the U.S. Congress, The Supreme Court, state legislatures, and many court jurisdictions. The legislative and judicial process typically supports openness and weighs in on the side of trying to reduce discrimination. The Supreme Court rejected the argument that confidential peer review was part of the First Amendment right of academic freedom. It states, "In effect, petitioner says no more than that disclosure of peer review materials makes it more difficult to acquire information regarding the 'academic grounds' on which petitioner wishes to base its tenure decisions. But many laws make the exercise of First Amendment rights more difficult" (See 110 S.Ct. 577 [1990]).

9. To read more about the issue. (Materials are in the Permanent Reserve Section of the Reserve Book Room at the Kerr Library under the title "Faculty Senate, Promotion and Tenure Documents." The Bednash book is in the same place under its title). See:


ACADEME, "University of Pennsylvania v. EEOC and the Status of Peer Review: A Symposium," May-June 1990, pp. 31-36.

Geraldine Diane Bednash, 1989, The Relationship Between Access and Selectivity in Tenure Review Outcomes. University of Maryland, Unpublished Ph.D. Dissertation, 375 p.

The Chronicle of Higher Education, See January 17, 1990, p. A1+; January 24, 1990, pp. B1, B3; February 14, 1990, pp. A19, A21.

Faculty Senate Promotion and Tenure Committee, "Committee Recommendations for Changes in the Promotion and Tenure Guidelines," to Faculty Senate, November 24, 1987.

Barbara A. Lee, Peer Review Confidentiality: Is It Still Possible? National Association of College and University Attorneys (1990).

The Supreme Court of the United States decision in Univ. of Penna. vs E.E.O.C, 88-493, cited as 110 S.Ct. 577 (1990).

Acknowledgments:

Many OSU faculty reviewed and commented on drafts of this paper. The following people assisted in preparation of this position by providing background information. I am solely responsible for the position stated here. Acknowledgment does not signify or imply acceptance of this position in any way. For materials I thank Anne Franke (AAUP), Zoe Ann Holmes, Barbara A. Lee (Rutgers University), Caroline Kerl, Mark Laponsky (AAUP), Dale D. McFarlane, Alice Mills Morrow, Keith Oles, and Geraldine Olson.

Prepared for the Faculty of Oregon State University by:

Court Smith
Professor


MEMORANDUM
TO: Oregon State University Faculty

FROM: Zoe Ann Holmes, President, OSU Faculty Senate

RE: WAIVER OF ACCESS SURVEY

The content of this Faculty Forum paper has been discussed on campus for a number of years. The Faculty Senate Executive Committee and the Provost would appreciate ALL faculty completing the following survey and returning it to the FACULTY SENATE OFFICE by May 7, 1991 (the survey is self-addressed on the reverse side; please fold in half).

Place an X by the statement that represents your opinion:

____ I favor keeping the current system which allows either for open access by candidates or the option of confidential outside letters (retain the current system allowing waiver of access of outside letters).

____ I favor the system of open file access to all candidates, with no option of confidential letters (discontinue the current system of waiver of access to outside letters).

Thank you for completing the survey. Participation as well as your opinion are both critical.

Opinions expressed by authors of Faculty Forum articles are not necessarily those of the OSU Faculty or Faculty Senate.