UNLV tenure system in question

Jennifer Knight

Wednesday, Feb. 13, 2002 | 11:35 a.m.

A tenured professor at the University of Nevada, Las Vegas who for nearly a decade has fought to get his job back after twice being fired won a jury verdict Tuesday in a case that raises questions about the university's tenure system.

The case of Richard Sutton focuses on UNLV's "two-strikes" policy, which allows administrators to fire instructors after two consecutive bad evaluation, and makes an issue of the whole tenure system, academic experts say.

"It is a policy that certainly does undermine tenure," said Boyd Earl, a UNLV professor and past president of the university's chapter of the American Association of University Professors, an organization that strongly favors tenure and academic freedom.

Earl said the policy has the potential to give "the administration a way to get rid of a person they deem inconvenient."

Sutton is the only known UNLV professor known to be fired under two-strikes policy, Earl said.

Sutton won a jury verdict in Clark County District Court Tuesday that UNLV breached the contract with Sutton, who was awarded $137,075 in back pay and $33,750 in compensatory damages for pain and suffering.

The jury also found that Sutton should be reinstated to his job in the Department of Public Administration, although that will be decided later by District Court Judge Mark Gibbons. "This is the conclusion of a very long struggle," Sutton, who had cleaned pools for a living after his firing, said after the verdict was read. "Dr. (Carol) Harter (UNLV President) made an unusual effort to go back in time and get me fired."

Sutton had been fired once in 1993 but was reinstated after he sued. He was given a new contract and fired again in 1999, his attorney says, after the university relied on the same evidence -- two negative performance reviews.

UNLV attorney Bart Patterson said an appeal is being considered. He said Tuesday's verdict highlights the difficultly in removing a tenured professor, despite several warnings of poor performance dating back to 1986.

Tenure has always been a thorny issue and is increasingly challenged in the courts, say educators. Academics who favor it say it's the only way to ensure free speech for professors. Those who criticize it say it can leave an institution with ineffective instructors.

Pinning a professor's career on two bad reviews renders tenure useless, argued Matthew Finkin, a professor of law at University of Illinois at Urbana-Champaign, whose expert testimony was read in court.

"The difficulty with this policy is that it eviscerates the idea of tenure," Finkin said.

UNLV attorneys were careful during the trial to point out the difference between academic freedom and incompetence, arguing that tenure is not an unconditional right.

"This is a case about a professor who violated his obligation," said Walter Ayers, a UNLV attorney. "Academic freedom does not permit poor performance. Academic responsibility, which goes hand-in-hand, requires appropriate maintenance of scholarly research and service."

Under the tenure system, professors are evaluated each year in three areas: the quality of their teaching, progress toward scholarly research, such as publishing their work in an academic journal, and service in the community.

UNLV said Sutton's work teach and the amount of work published was sub-par. Sutton refutes the charges.

UNLV is also facing a case in the Nevada Supreme Court as Marcella McClure, a former virologist and assistant professor in the biology department, claims that personality differences between her and her supervisor led to McClure being denied tenure, which resulted in her dismissal.

She says she was judged in part on "collegiality," which never was in her contract, and lost the position because of that.

Once gained, tenure isn't easily lost at most universities, even with unsatisfactory evaluations, educators say. In fact, firing a professor is rare, difficult and almost always challenged in court, said Martin Snyder, associate secretary of the AAUP's national office in Washington.

"It is almost unimaginable that something is going to happen after tenure is granted," Snyder said. "It is really unusual to have that kind of a rigid lock-step policy."

Tenured professors are mostly removed for "gross dereliction of duty," Snyder said.

The University of California campuses, for example, must prove a professor has been "demonstrably incompetent" before removing him from a tenured position. Only six such terminations have occurred over the past 20 years, UC spokesman Paul Schwartz said.

In Arizona's university system, tenured professors must show demonstrated incompetence, dishonesty, substantial neglect or moral turpitude before action is taken. Those who do not have a "satisfactory" performance over time are given every reasonable opportunity to correct it; professors are fired only if there is a failure to improve over time.

Tenure is such a sacred cow that those who question it are perceived to be attacking it, said Richard Chait, a professor at Harvard's Graduate School of Education in Cambridge, Mass.

"It's hard to imagine that one policy essentially conceived 100 years ago can make sense for everything from a community college in Nevada to an aeronautical college somewhere else," said Chait, who has questioned the one-size-fits-all model of tenure.

Chait and senior research associate Cathy Trower have explored the tenure issue in their work at Harvard and found that some institutions work best when a system of post-tenure review is in place.

"Most of us would argue that there is very little dead wood (at universities). There is some driftwood," Trower said. "Putting measures in place such as UNLV's two-year policy, instead of using fuzzy language like at other institutions, can help. It does encourage faculty to stay on their toes, or at least retire if they can't."