Tuesday, Aug. 28, 2001 | 11:04 a.m.
A case before the Nevada Supreme Court is challenging whether UNLV has the right to base the tenure of professors on the opinions of their colleagues.
Both local and national associations of professors believe that if the university wins the Supreme Court appeal the decision would become a landmark that would have far-reaching negative effects on UNLV's reputation for academic freedom.
Lawyers arguing the case for UNLV do not dispute the claim that a department head, acting out of personal animus, manipulated the review system against one of her subordinates. But, in a rebuttal brief, university lawyers said dislike for someone is a permissible reason for denying tenure.
"To me, that is an appalling statement because it totally violates the concept of academic freedom and the traditional way in which departments operate," said Boyd Earl, former president of UNLV's Nevada Faculty Alliance.
Marcella McClure, a former assistant professor of biology, sued UNLV in May 2000 for breach of contract after she was denied tenure. McClure contends that her department head and supervisor, professor Penny Amy, manipulated the tenure review process because Amy judged McClure using a separate set of rules.
Amy added collegiality -- how a professor interacts with her colleagues -- as a requirement regarding McClure's bid for tenure.
A lower court ruled against McClure, and if the Supreme Court upholds the ruling it will give the state's higher learning institutions more power in the way they grant tenure.
"I think this could be a landmark case," Earl said. "If the university's position is upheld in this case, that will mean that any new faculty coming here will face the fact that any tenure will be up for the roll of the dice. Because, if any administrator happens not to like them, they can get rid of them."
The university's position is that as a state entity it is immune from such lawsuits because it is not responsible for the discretionary actions of its faculty, UNLV general counsel Tom Ray said.
The American Association of University Professors opposes the use of collegiality as a basis for tenure because its end result is to thwart academic freedom, Martin Snyder, its director of academic freedom, said.
"It becomes a kind of tool to enforce conformity," he said. "It says that people need to act the same. People need to speak the same. It begins to constrain the kinds of diverse opinions, which make academics fruitful and interesting, and instead makes them afraid to be different."
"We view tenure not as an end in itself, but an assurance of academic freedom," Snyder said. "When people start monkeying around with the tenure process, that creates a climate in which tenure is in jeopardy."
Tenure provides job security for professors and allows them the freedom to conduct controversial research or teach without fear of losing their jobs. But McClure, who had been at the university five years at the time of her review, never received that protection.
The case could have far-reaching negative effects on UNLV's reputation if it perceived that the university and other institutions can change the rules for tenure midway through the process, Earl said.
Taking the other side, Jane Nichols, univerity system chancellor, said McClure's suit has important implications as it applies to higher-education law because it stands to give power back to university professors by allowing them to have a say in who their colleagues are.
When McClure came to UNLV in 1993 as an associate professor, she was touted as a great find for a university that wanted to beef up its research arm.
McClure is regarded as an eminent biology professor in her specialty of molecular virology, the study of viruses to determine their gene function and how they change over time. She also brought the department a large grant from the National Institutes of Health.
At the time, former UNLV President Bob Maxson was wooing young researchers from big universities to help build a strong research program. McClure says it was a time of hope.
"I was so happy to go there," McClure said. "A lot of people decided to move from good places to come there."
Before coming to UNLV, McClure signed a contract agreeing that she would be considered for tenure if she excelled in one of three fields: research, teaching or service. The faculty member must be judged satisfactory in the two remaining areas.
"What you're not told before you sign the contract (for a faculty position) is that they can manipulate the tenure process and cause harm to you, and you can't do anything about it," Bradley Richardson, McClure's attorney, said.
After receiving excellent evaluations for three years, McClure believed she was on her way to gaining tenure.
Then she earned a grant from the National Institutes of Health that would bring $1.4 million in research money to UNLV. "I immediately called a professor I knew at Stanford, and he said to me, 'Congratulations, you just got your tenure,' " McClure said.
That didn't happen. According to court documents, shortly after McClure secured the grant, Amy, the acting chairwoman of the biology department, took a series of actions that would torpedo McClure's application for tenure.
One action included the collegiality standard, Richardson said.
Shortly after the collegiality criteria was added, McClure received her first bad review from Amy. That set the stage for the denial of her tenure, court documents say.
But as McClure's review for tenure came up for review by a faculty personnel committee, Amy stepped down as department chairwoman. Amy was then placed on the committee charged with considering McClure's bid for tenure.
With the standard of collegiality in place, UNLV refused to grant McClure tenure as an associate professor of biology, effectively firing her.
"This is a case of professional jealousy," McClure said. "What the university is saying is that no matter what the constitutional bylaws are, it is a shifting-sands policy, and they can do what they want."
The university noted in its Supreme Court rebuttal brief that McClure's last evaluation showed she met the minimum standards for tenure, rating only a commendable performance rather than the required standard of excellent.
Since McClure was not tenured, "She had no reasonable expectation of continued employment or protected due process rights in the procedures by which tenure decisions are made," the university lawyers wrote.
The claim that personality could be a basis for denial of tenure set off a storm of criticism from the Nevada Faculty Alliance, a nonprofit faculty advocacy group.
The group filed a supporting brief in McClure's case, stating that UNLV violated McClure's tenure review process by "arbitrarily imposing an unapproved standard upon her."
McClure said the loss of tenure was a source of anxiety.
"It was really devastating. This is a terrible thing to go through," McClure said. "I had planned to spend the rest of my life (at UNLV)."
McClure is continuing her research at Montana State University, where she sits on the tenure review board.
In addition, she is well on her way to getting tenure at her new institution, she said.
"It shouldn't be a problem."
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