In recent years, an increasing number of professors have sued universities and colleges on the grounds that they were denied tenure because of their gender or race. The number of tenure discrimination claims against universities more than tripled between 1992 and 1997.1 In 1999, a female professor who was denied tenure by Trinity College in Hartford, Connecticut, was awarded over $12.6 million by a jury which agreed that she had been a victim of sex discrimination.2 This may be the highest award ever in a tenure case in the United States.3
Many post-secondary institutions are taking steps to protect themselves from these costly and embarrassing lawsuits. In order to forestall any breaches of procedure that could lead to future litigation, some colleges and universities have established workshops to familiarize their employees with school policies regarding tenure.4 Also, many universities and colleges simply choose to settle tenure discrimination claims: it has been estimated that three-quarters of these cases are settled out of court.5
It has been suggested, however, that universities and colleges are overreacting. As one commentator noted: "If the truth be known, most universities aren't organized in a way where they could consciously and systematically do anything, let alone discriminate."6 This statement is supported by the fact that universities IMAGE FORMULA3usually win appeals in tenure discrimination cases.7 Admittedly, the cumulative results of these appeals are somewhat misleading, since the appealed cases are those that the universities believed they could win rather than settling out of court. Nonetheless, these cases do illustrate the unique difficulties faced by university faculty attempting to prove denial of tenure on account of race or gender. This article describes the two major obstacles to successful tenure discrimination claims: the special deference the courts have shown towards academic decisionmaking, and the complex character of the tenure review process itself. Although the courts should not abandon their deferential attitude, they should begin to recognize the unique difficulties faced by plaintiffs in tenure cases and they should adopt a more flexible approach in assessing the evidence of discrimination on the basis of race or gender.
1. Tenure: Definition and History
Tenure is an employment status awarded to a professor after he or she has completed a trial period of service (usually six years).8 During this period, the university has the opportunity to assess the professor's competence. Once a faculty member has tenure, he or she may only be dismissed for adequate cause, financial exigency, or a change in university programs.9 Tenure was first encouraged by the American Association of University Professors in the early twentieth century as a way of preserving the academic freedom and independence of the professoriate.10 Universities and colleges were willing to grant tenure to faculty members in the 1950s and 1960s because of the strong demand for professors (a situation that has now changed dramatically in most fields).11
Tenure is a unique employment situation, primarily because of the "long-term commitment a decision of tenure necessarily entails."12 It is very difficult for a college or university to terminate the employment of a tenured professor; yet, on the other hand, a professor who does not get tenure at the end of the trial IMAGE FORMULA6period may find it impossible to obtain another academic job, even one of equivalent status, since most institutions are reluctant to hire someone who did not meet tenure requirements elsewhere. The review process that precedes the granting of tenure is therefore critical to both sides.
In the typical tenure review process, the candidate for tenure assembles a file describing his or her activities during the trial period. …