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.
