Here We Go Again On Tenure Battles
“Those that fail to learn from history are doomed to repeat it.”
— Winston Churchill
Permitted Interaction Group (PIG) or Wild Pig
On Friday, September 10, 2021, the University of Hawai‘i Board of Regents posted their agenda and meeting materials for the September 16, 2021 meeting. Included on the agenda was the report of the Tenure PIG. Based on the February 18, 2021 BOR meeting, the Tenure PIGʻs purpose and scope was to review and investigate the issue of tenure in areas including the history and purpose of tenure at IHEs, particularly regarding the University of Hawai‘i (UH); the evolution of, and current views and developments on, tenure at institutions outside of UH; and the current process, criteria, and decision making on tenure at UH. We question Tenure PIG Chair Ben Kudo whether the report submitted by the Tenure PIG meets the purpose and scope of its original intention. Nevertheless, the following is UHPAʻs critique of the proposed changes to UH Regents Policy RP 9.213.
Destroying the basic tenets of tenure and academic freedom
On October 16, 1981, almost 40 years ago, the University of Hawai‘i Board of Regents unilaterally adopted a policy entitled, Evaluation of Board of Regents Appointees, otherwise known today as RP 9.213, Evaluation of Board or Regents Appointees. This caused the UHPA to file a prohibited practice complaint (PPC) with Hawaii Labor Relations Board (HLRB) alleging violation of Chapter 89, HRS, more specifically subsections §89-13 (a)(1), (2), (3), (5), and (8). UHPA challenged the policy on the basis that it implemented a post-tenure review system, which, in effect, modified or eliminated the tenure rights of faculty members as set forth in the Unit 7 agreement that former UHPA Executive Director JN Musto proclaimed as “…aimed at destroying the basic tenets of tenure and academic freedom.”
Disguised as an assessment tool and not a rating instrument
The UH President at that time, Dr. Fujio Matsuda, stated that the policy would allow the administration to:
- Provide assurances to the University and its constituents that professional staff resources and particular areas of expertise are being used to the best advantage;
- Provide for the systematic recognition of excellence and develop incentives for superior performance, and
- Provide means for the improvement of performance in furtherance of the Universityʻs mission.
Dr. Matsuda also proclaimed that the proposed policy would not be a rating instrument per se, but an assessment tool to indicate strengths and weaknesses in an employeeʻs work. However, HLRB did not buy this argument.
HLRB rules faculty evaluations are negotiable
HLRB Decision 199 specifically noted that “While we agree with the BOR that it may implement its evaluation procedures, we are not convinced that the impact of an “unsatisfactory” rating in and of itself would not affect working conditions to a degree so as to constitute a negotiable matter.”
UH was required to negotiate with UHPA over the implementation of its desired five-year evaluation policy. During the negotiations process, UHPA maintained its original position that while it did not disagree with the administration’s right to discipline tenured faculty members or to remove faculty members if they fail to perform their duties, the burden to show such failure solely rests with the administration and that other faculty peers should not be involved in the review process. Furthermore, that it should not be considered a tenure review process or a reapplication of tenure since there should be an automatic presumption that a faculty member has met all the duties, responsibilities, requirements, and performance of a tenured faculty.
The UH administration and the UHPA essentially agreed a tenured faculty memberʻs five-year review will be an evaluation between the tenured faculty member and the respective Department Chair. If itʻs deemed “satisfactory” by the Department Chair, a memo is sent to the Dean/Director for filing. If itʻs deemed “unsatisfactory” by the Department Chair, the Department Chair and the tenured faculty member would develop a Performance Development Plan (PDP) that is then given to the Dean/Director. In most situations, the PDP satisfactorily resolves the Department Chairs concerns and thereafter a memo is sent to the Dean/Director for filing. In those unusual situations in which the PDP is unsuccessful, a memo is sent to the Dean/Director by the Chair depicting that the PDP hasnʻt met its desired outcome in addressing the tenured Faculty memberʻs performance concerns. Thereafter, the five-year review process is closed and management can begin the process under the Unit 7 Agreement to begin taking appropriate administrative actions, including termination of a tenured faculty memberʻs appointment, for failure to meet the performance requirements of the position.
The five-year review has worked just fine
For the past 40 years, the five-year review under RP 9.213, Evaluation of Board or Regents Appointees has met its desired purpose and intent. It provided the avenue that Dr. Matsuda was seeking through the negotiated process between the UH administration and UHPA.
History will attempt to repeat itself
While every single historical moment is distinctly different from the past, if we do not learn from our mistakes, we risk the chances of repeating it. Four decades later, we have a different political, social, and leadership climate. Unfortunately, there are a few individuals interested in revisiting RP 9.213, Evaluation of Board or Regents Appointees to again bring into the conversation the ability for management to use it as a rating tool and to take disciplinary action against those tenured faculty members who they believe are not meeting the performance requirements of the position. UHPA believes that this is an unnecessary and ill-advised tactic since we have already gone down this road and have already developed a pathway forward for the UH administration to follow. Whether this is being driven by undue political interference, lack of knowledge or understanding, or just pure hubris, it is definitely a path that will only lead to confusion and uncertainty. There is already a system in place that was developed through negotiations between the UH administration and UHPA that has worked for over four decades. Is all this necessary?