..........Unlike the extensive body of
conflicting research on the construction, assessment, validation, and
interpretation of student evaluation of faculty (SEF), until recently
there has been virtually no categorical mention of their impact on
academic freedom and tenure rights (Haskell, 1997). When SEF is recognized
to have an impact, unlike traditional threats to tenure and academic
freedom, it does not appear to warrant serious concern. Moreover, as
I noted in my first article, when it is suggested that SEF may impinge
on academic freedom, tenure, promotion and reappointment, it is generally
considered an attack on either student rights, the process of evaluating
faculty performance in general, or both. Unlike academic freedom, tenure,
and other educational issues, as a retrieval category SEF is virtually
absent in legal compendia on higher education law. Sources citing legal
cases on the issues of academic freedom, tenure and promotion do not
typically address SEF.
..........A recent booklet on "The
Law of Teacher Evaluation" (Zirkel, 1996) contains no mention
of SEF cases. Nor does a recent comprehensive legal guide for educational
administrators, (Kaplin and Lee, 1995), nor do other reports (Poch, 1993)
on the legalities of academic freedom, tenure and promotion. Two other
recent sources, however, do address the issue, one very briefly, (Baez,
and Centra, 1995), the other somewhat more extensively (Weeks, 1996).
This absence is both surprising and important given that courts have
recognized for some time "that in recent years increasing weight has
been placed upon teaching ability" (Johnson v. University of
Pittsburgh, 1977).
..........In a
rare mention of SEF as an
infringement on academic freedom, a recent handbook for college
administrators, refers to the concept as "a rather novel attack on
the use of student evaluations in assessing a faculty member's
performance" (Weeks, 1996). It has generally been taken for granted,
not only by many
administrators but by faculty as well, that SEF is both appropriate and
necessary.2
There are, however, increasing signs indicating the examination of this
issue by faculty.3
It is important to note at the outset that it is not SEF per se
that is the issue in this paper, but rather the legal and educational
implications of its use in salary, promotion and tenure decisions. Neither
is the primary concern with faculty welfare. As I will delineate in a
following paper (Part IV), the primary issue is the implications for academic
freedom in the service of standards and quality of student instruction.
Such signs would suggest a review of legal rulings involving
SEF.4
..........In addition
to not considering SEF a significant issue in the abridgement of academic
freedom, tenure, promotion, and reappointment, a further reason for the
paucity of articles on this issue is the difficulty in searching for legal
cases. It appears that cases involving student evaluation of faculty are
most always only a part of a much wider set of issues regarding denial of
academic freedom, promotion, tenure, and reappointment.5
In addition, it seems that such cases are often settled not in courts of
law but by Labor Relation Arbitration Boards rulings. Since rulings on
SEF are embedded within other cases, locating them through key word
searches is extremely difficult.6
Accordingly, there exists no systematic cataloging of how courts have
specifically viewed SEF in cases involving denial of academic freedom,
tenure, promotion, and reappointment.
..........Because administrative policy
regulating the use of SEF has largely evolved in a de facto or default
manner, this paper will examine legal reasoning and rulings on SEF.
In the evolution of any legal standard, the accumulation of data,
judgements, and arguments around an issue need to be coalesced. As
the history of legal rights demonstrates, issues not considered to
have legal standing only come to have standing after a long and
arduous process of analysis and advocacy. It is the purpose of this
paper to coalesce the legal rulings on SEF and to thus facilitate
this developmental process, and to serve as an initial resource for
faculty organizations and other policy makers. In doing so, I would
like to make clear that I am not an attorney and approach this paper
and court rulings from the legal concept of the
"reasonable man" standard.
..........In the first of what will be
four articles on SEF (Haskell, 1997), I suggested that SEF is
deceptive regarding its negative implications for higher education.
In this second article, based on the content of located cases, I have
developed a set of categories and have abstracted the corresponding
rulings. More importantly, it should be noted that the issues involved
in SEF go beyond problems involved in general faculty evaluation
procedures. Delineating the ramifications of SEF provides a concrete
vehicle for further understanding the abstract concept of academic
freedom.
..........To render
the boundaries of this paper manageable, its focus will be delimited
to how courts7
have addressed SEF issues within various legal challenges to the denial
of academic freedom, tenure, promotion, and reappointment by institutions
of higher education. It is important to note that there are multiple
legal variables that determine an action or final outcome in any given
case. For example particular statutory considerations, cause of action,
level of prima facie evidence, standards and burden of proof, and level
of judicial action, i.e., whether it is pre trial, lower level court, or
appellate, etc., (see Kaplin and Lee, 1995, section 1.4.3.6). For my
purposes here, I will not be concerned with these variables. Accordingly,
this paper will neither be concerned with the validity or wisdom of the
legal rulings, nor with the complex reasoning on which the rulings were
based. My purpose is to review the general reasoning of the courts on
SEF. Only when specifics of a case are contextually warranted in order
to clarify the court's view of SEF will contextual specifics be noted.
8 Not only
are such cases prima facially complex, but when specific legal
definitions (e.g., disparate impact and treatment) and other special
Congressional Acts (e.g., EEOC) are superimposed on them, they become
logically unwieldy, not just to the non legal scholar, but apparently
even to the Courts.9
..........I should note that the collective
rulings are an extremely disparate and frequently contradicting corpus.
I should note, too, that in presenting this complex legal corpus, in
order to avoid any misinterpretation, I felt necessary to quote
extensively from the original material rather than paraphrasing and
requiring the reader to constantly refer to the Appendix, which is
provided as a resource. For ease of reading and convenient
referencing, I have placed the quoted legal rulings, along with my own
necessary transitional phrases connecting the quotes, within an indented
text format
Finally, I will be making no distinctions between
the various levels of judiciary proceedings.
Use of SEF
..........Since the
1960's SEF has been increasingly used in decisions on tenure and promotion.
In comparing two studies of the same 600 liberal-arts colleges, the author
found that the number of institutions using student ratings to evaluate
instructors had escalated from 29 per cent to 68 per cent to 86 per cent.
The author (Seldin, 1993) noted that no other method of evaluation has
approached that level of usage. Another survey found that most business
schools now use SEF for decision making, with 95% of the deans at 220
accredited undergraduate schools always making use of them as a source
of information (Crumbley, 1995). Two nationwide studies of accounting
department Chairpersons, indicated that reliance upon SEF was second only
to research publications in professional journals (Yunker and Sterner, 1988).
Department chairs and Deans often weigh student ratings heavily in the
faculty evaluation process. With the exception of publications, no other
method of faculty evaluation has become so sacrosanct.10
The reason that SEF was initially instituted was for informational
feedback to faculty so they might be more aware of student needs.
..........Not only
does SEF have legal standing, but in some states it is mandated for
secondary teachers. According to one author, student evaluations in some
states have legal weight, and teachers have been fired on the basis of
low ratings on their student evaluations. In California SEF is apparently
mandatory under law "whenever practicable" (in, Allegre, and
Guista, 1993). SEF is used not only in the U.S. but in Australian, Canada,
Europe and Great Britain. Unlike in the U.S., however, in other countries
SEF by formal questionnaire, despite apparently no formal mandate, is
increasingly used, though not weighed as heavily as is information
gathered by other means (Husbands and Fosh, 1993). The instrument has not
been used just for informational feedback, however. If it was only used
for feedback, then SEF would presumably not be a problem.11
As Cashin (1996), Director of the Kansas State University, Center For
Faculty Evaluation and Development, notes, "The higher education
rhetoric is almost universal in stating that the primary purpose of faculty
evaluation is to help faculty improve their performance. However, an
examination of the systems--as used--indicates that the primary purpose is
almost always to make personnel decisions. That is, to make decisions for
retention, promotion, tenure, and salary increases." Herein lies a
nest of problems.
Legal Rulings on The Reliance and Validity of SEF
..........This section,
will examine courts' approach to SEF in the denial of academic freedom,
tenure, promotion, and reappointment decisions. In so doing, I have
abstracted from located cases the following categories: (1) Reliance on
SEF v. Peer Evaluation, (2) Popularity and Effectiveness, (3)Transcendent
Value of a Professor Over Teaching Quality, (4) Establishing the General
and Statistical Accuracy/Validity of SEF, (5) Numerical Ranking of Faculty,
(6) Acceptance of Administrative Subjective Judgements Of SEF Data,
(7) Use of Qualitative Written Student Comments, (8)Mixed Student Comments,
(9) Student Biases in Affecting SEF, (10) Variables Not Taken Into Account
When Assessing SEF, (11)Courts View of Who Sets Academic Standards,
(12) Methods of Instruction and Academic Freedom (13) Release of SEF To
Students and To The Public.12
..........Within these
categories, I have included Canadian court findings.13
I have chosen to include Canadian cases for three reasons. First, to
provide a larger data base illustrating how legal bodies reason and rule
on cases involving SEF, second, to provide a wider array of an otherwise
relatively small number of U.S. cases; and third, to provide a set of
comparative views from a culture and legal system that has both an
interesting set of similarities and differences.14
In two following papers, I will further address and analyze the impact
and implications of these legal rulings in relation to (a) psychometric
Validity, and (b) academic freedom and instruction.
Reliance on SEF v. Peer Evaluation
..........One important issue is how the
courts view the relative weighting of SEF in administrative decisions of
teaching competence. Is it acceptable, for example, to rely heavily on
them, or must they be used in conjunction with other evaluative methods?
In Johnson v.
University of Pittsburgh (1977), the court noted that it (5)
15 "has placed little
reliance on students' surveys....students in a given course rating a
teacher, or professor, some of them as excellent,
others as terrible and in between, many who say passable, mediocre etc....
we cannot say it was unreasonable for the tenured faculty to consider this
along with other matters" (p.1359). (8) "It is also obvious that
the court and the administration of universities cannot permit students to
exercise a veto over professors who may be world renowned scientists"
(p.1366-7). A similar view was expressed in Yu Chuen Wei v. Vermont State
Colleges Faculty Federation (1995).
In Peters v. Middlebury College (1977), the court gave some
weight to an administrative devaluing of a set of positive student
evaluations of a faculty that said (2) "The department chair sent a
letter to the president of the college, saying, 'The course of action I
recommend is not likely to be popular with students who, though they in
part recognize her intellectual limitation, are warmly responsive to her
enthusiasm, energy, openness and ready human concern' " (p.860).
In Carley v. Arizona Board of Regents, (1987), the court
said, (23) "Carley has cited no authority that relying primarily
or solely on student evaluations would be impermissible. We have found
none" (p.1105, italics added).
In Guam Federation of Teachers v. The University of
Guam (1990), the Guam Federation of Teachers challenged the use of SEF
in tenure and promotion decisions (Blum, 1990). The Board (1) ruled to
remove anonymous student evaluations from professors' tenure files,
(2) The union said the use of SEF violated the union's contract with the
university, (3) which provides that anonymous documents or those "based
on hearsay" should not be included in a faculty member's file, (4) The
court further ruled that (5) students should be made aware of the purpose and
ramifications of their evaluations, and (6) anonymous student evaluations
should not be used.
In Robert Kramer v. The President of the University of
British Columbia (1992), the Board noted that (18) "The most
important perceived error in the teaching evaluation, in the opinion of the
Board, is the reliance solely upon the student evaluations and written
comments...There was no peer review at all; no member of the Department audited
any of Dr. Kramer's lectures" (p.10).
In University of Regina Faculty Association v. University
of Regina (1993) a Canadian Arbitration Board ruled that (3) "With
respect to teaching, it is our opinion that the evidence of unsatisfactory
performance is very weak indeed... It is important to note that the basis of
the comments, particularly the negative ones in the fall of 1992, were written
student assessments... [and] Although these assessments are expressly recognized
in Art. 17.19 of the collective agreement, to base important career decisions
on them only does not seem justified" (p.4). The Board further ruled (4)
that tenure decisions could not be based solely on assessments which were
completed by students who had never been made aware of the ramifications of
their statements. (5) [I]f evaluations are to be used for serious career
development purposes those completing them should be aware of the potential
consequences of their participation" (p.4) (8) "To base serious
career decisions narrowly on student evaluations is not to be encourage...
(9) If teaching is to be seriously evaluated for career purposes, whether
for positive or negative purposes, it seems incumbent upon Faculties not to
rely only on classroom administered evaluations but to broaden the base of
assessment" (p.4)
In Christopher Turner v. The President of the University
of British Columbia (1993), the Board ruled, "(9) while the [Faculty
Association] Agreement permits, but does not mandate either student reviews
or peer reviews, and the methods of assessment 'may vary', we do conclude that
the reliance placed on these very limited student reviews must have been great,
since there was no other evaluation referred to. Where there is no other
evidence sought, student comments will have an apparent importance and
credibility that they may not deserve... (10) We would strongly recommend peer
review in the reconsideration which we are requiring" (p.7). The board
further noted that (8) "This board has been asked on a number of
occasions to pass judgment on the relevance of student evaluations to the
[Faculty Association] Agreement criteria for good teaching. Good teaching
is an elusive concept. Students may not be good judges during a course; their
judgment might be quite different several years later in life" (p.7).
Summary: From these cases, it can be seen that court rulings range
from saying that (1) relying primarily or solely on student evaluations is
acceptable, to (2) placing little exclusive reliance on SEF, (3) in rare cases
SEF can not be permitted to stand in the way of promoting or retaining
professors who are excellent in non teaching areas, (4) tenure decisions can
not be based solely on SEF by students who have not been made aware of the
ramifications of their evaluations, (5) anonymous documents or those
"based on hearsay" should not be included in a faculty member's
file, (6) students should be made aware of the purpose and ramifications of
their evaluations of faculty, (7) anonymous student evaluations should not be
used, (8) peer evaluations must also be a part of evaluating teaching.
Popularity and Effectiveness
..........A significant
issue in SEF is the extent to which it measures popularity not teaching
effectiveness. Accordingly, it is instructive to see how courts view this
issue.16
In Johnson v. University of Pittsburgh (1977), the
court said, "It is also obvious that the court and the administration
of universities cannot permit students to exercise a veto over professors
who may be world renowned scientists and yet if the students rate them
unfavorably can be terminated at any time because of
unpopularity" (p.1366-7).
In Carley v. Arizona Board of Regents, (1987), he
(8) he maintained his popularity suffered as reflected in his low student
evaluations; in Robert Kramer v. The President of the University of
British Columbia (1992), he maintained that (14) student evaluations
were considered from the standpoint of his popularity, not his
effectiveness; and in Brian Maclean v. President of The University of
British Columbia (1991), (35) The Faculty Agreement specified that
"Evaluation of teaching shall be based on the effectiveness rather
than the popularity of the instructor." Courts have ruled in various
directions on this issue.
In Robert Kramer v. The President of the University of
British Columbia (1992), the board noted (21) "As for the 'popularity
vs. effectiveness' debate, a discouraging or hostile attitude is a part of
effectiveness as much as it is of popularity" (p.8).
In Christopher Turner v. The President of the University
of British Columbia (1993), the Board ruled, (8) "while popularity is
not competence nor effectiveness, to the extent that it encourages students
it has some relation to both" (p.7).
Summary: From these cases, it can be seen that court rulings
range from saying that (9) in cases of exceptional research faculty that
popularity should not play a role in termination due to teaching, to (10) in
normal cases that a measure of popularity is related to teaching
effectiveness.
Transcendent Value of a Professor Over
Teaching Quality
..........Despite the importance placed on
teaching, there is precedent for both school policy and the courts---under
certain conditions---to ignore poor teaching as indicted by SEF.
In Johnson v. University of Pittsburgh (1977), the court
said, "It is also obvious that the court and the administration of
universities cannot permit students to exercise a veto over professors who may
be world renowned scientists" (p.1366-7), noting, "It is obvious
that a professor may be possessed of excellent qualifications as a research
scientist and not necessarily be able to prove his or her worth as a teacher,
concluding that, (9) "in cases where one has an outstanding scientist
of national or international reputation, one may decide to promote and give
tenure notwithstanding inability to come across as a teacher, this however
is not one of those cases" (p.1366-7).
In Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995), (31) Wei's last claim charged that the College
violated the Contract by denying her a promotion, even though both her
scholarly performance and professional activities were exceptional. Article
22(E) of the College provides for otherwise granting promotion if the
President decides that "performance in one of three areas has been
exceptional" (p.314). The Board concluded that "Although Grievant
had a significant publication record, most of it was developed before
coming to Castleton" (p.315). (33) In terms of exceptional scholarship,
Dr. Wei maintained she had solved a significant mathematical problem
(apparently published). The Board's response was, (34) "although Grievant
claimed to have solved the Erdos conjecture, [the]Dean reasonably concluded
that she had not established that she actually had solved the conjecture.
Under these circumstances, and given our consideration of the discrimination
issue previously discussed, we conclude that (35) Grievant has not established
discrimination. The Colleges reasonably, and based on legitimate reasons,
concluded that Grievant had met the tenure standards in this performance
area but that her performance was not exceptional" (p.315).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), the court said, (34) "while a superior
research and publication record cannot overcome a poor teaching record, it
might tip the scales where the teaching record was 'on the edge'" (p.10).
Summary: Courts have ruled that (11) the courts and educational
administrations can not allow low SEF to stand in the way of promoting or
retaining professors who may be world renowned scientists, (12) deemed
nationally or internationally exceptional as a researcher, courts have
variously ruled that SEF may be disregard and not disregarded, (13) at least
in these two cases the courts did not find the faculty exceptional.
..........An issue directly related to the
relative reliance on SEF for administrative purposes is validity. It would
presumably appear from any "reasonable man" standard that the more
valid the SEF data in a given case, the more justifiable is the reliance
on them.
In Johnson v. University of Pittsburgh (1977), the court
said (7) "We have repeatedly approved the use of statistical proof where
it reached proportions comparable to those in this case to establish a prima
facie case of racial discrimination in jury selection cases . . Statistics are
equally competent in proving employment discrimination. We caution only that
statistics are not irrefutable. They come in an infinite variety and, like any
other kind of evidence they may be rebutted. In short, their usefulness depends
on all of the surrounding facts and circumstances" (8) The court further
said in Footnote # 20: "Considerations such as small sample size may of
course detract from the value of such evidence" (p.1361).
In Peters v. Middlebury College (1977), it was
maintained that (5) "A professor's value depends upon his creativity, his
rapport with students and colleagues, his teaching ability, and numerous other
intangible qualities which cannot be measured by objective standards" (p.860).
In Fields V. Clark University (1987), the court noted
that (10) Fields' "attacks" the university's use of her student
evaluations because they were not gathered and evaluated according to accepted
standards of scientific polling procedures. In response, the court agreed,
saying, "She is probably correct. The use made of the student evaluations
in her case, however, followed the practice at the defendant's university in
other tenure decisions" (P.671).
In Cynthia J. Fisher v. Vassar College (1995), the
court noted that (7) "statistical analyses may be a part of a plaintiff's
effort to establish discriminatory treatment" (p.1209).
In Yu Chuen Wei and the Vermont State Colleges Faculty
Federation (1995), the court ruled that (4) "The Court need not
consider the accuracy of these administrative determinations, and that
(24) tenure criteria "are not drawn with mathematical nicety." The
board further ruled that (25) "the Dean and the President, both reviewed
Grievant's student evaluations carefully. Their failure to take it a step
further, and perform a statistical comparison of Grievant's student evaluations
with those of other faculty members who have been granted tenure was not
arbitrary and was reasonable; (26) Such a comparison is nowhere required by
the Contract, [and] (27) we decline to hold such an involved comparison is
necessary before a reasonable tenure determination can be made" (p.311).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), the court concluded (38) "that the
instrument was not perfect, that it had flaws, and that the very limited number
of samples (because of the very limited number of courses and students
surveyed over the period) impaired its reliability. (p.30). (39) "However,
we accept the evidence of Dr. [X] that the instrument has some value, directed
toward the specified factors. The court noted that (28) "One problem with
the questionnaire is that it solicits bad points as well as good points.
Despite that caveat, we conclude that the inclusion of the qualitative comments
was not a significant error" (p.32).
In Robert Kramer v. The President of the University of
British Columbia (1992), the Board said, (19) Given certain Departmental
procedures, "there is a danger that some negative class commentary will
dominate the discussion and will not be the 'independent' opinion of all of
the students. (20) This is especially true in the context of the direction to
assess "effectiveness" versus "popularity" (p.10). They
further noted, (18) Given that "There was no peer review at all; no
member of the Department audited any of Dr. Kramer's lectures. There was,
therefore, nothing to guide the Department but the student comments,"
and "no way to test the accuracy or fairness of the undoubtedly
disturbing comments in Asian Studies" (p.10).
In University of Regina Faculty Association v. University
of Regina (1993), The Board argued (6) that "the University was
under an obligation to verify negative comments before acting on them" (p.4).
In Christopher Turner v. The President of the University
of British Columbia (1993), the Board said, (7) "while not ignoring
some student unhappiness with Dr. Turner's teaching style, we think that the
comments and emphasis on the size of Dr. Turner's classes as evidence of poor
teaching are open to objection and constitute errors of procedure and/or
evidence" (p.6).
Summary: With regard to establishing
the general and statistical accuracy of SEF in the above cases, the range of
opinion is from (14) statistical analyses may be a part of a plaintiff's
effort to establish discriminatory treatment if it reached proportions
comparable to those in cases establishing a prima facie racial discrimination,
(15) cautioning that statistics are not irrefutable, with their usefulness
depending the surrounding facts and circumstances of a case, (16) the Court
maintaining that it need not consider and is under no obligation to establish
the accuracy of administrative interpretations of SEF, (17) that
tenure criteria are not drawn with "mathematical nicety,"
(18) administrator's failure to perform statistical comparisons is not
arbitrary and is reasonable, (19) especially if such is not required by a
Faculty Association Contract, (20) nearly any use made of SEF is acceptable
if it followed the standard practice of the university, (21) that creativity,
rapport with students and colleagues, teaching ability, and other qualities
are intangibles which cannot be measured by objective
standards.18
Numerical Ranking of Faculty
..........It seems to be common practice to
rank and compare faculty to each other according to average SEF scores,
considering decimal differences between faculty as significant.
In Dyson v. Lavery (1976), a student evaluation ranked
her 46th of 48 teachers.
In Lieberman v. Grant (1979), the court noted (4) a
compilation of student ratings showed that the cumulative ratings for members
of the department ranged from a low of 4.09 to a high of 8.95. She had a
cumulative rating of 7.06, which ranked her 12th out of the 15 junior faculty
members. The 7.06 figure included the ratings from a previous semester in
which the plaintiff received a rating of 8.18. Prior to this rating in the
spring of 1972, the plaintiff's cumulative rating was 6.7.
In Carley v. Arizona Board of Regents (1987), it was
noted that (1) of the 13 faculty in his department of art, he was ranked fifth,
(2) by his chairman he was ranked 7th, (3) student evaluations, however,
ranked him last: 13th of 13 (p.1105).
In Robert Kramer v. The President of the University of
British Columbia (1992), the court noted (24) scores in the other two
courses were higher---3.45 in one, 3.91 in another, against a "faculty
average" of 4.22. The board further noted, "In the result, one got
a 2.82 and one got a 3.07...the difference is statistically invalid in any
event" (p.10).
Summary: Numerical scores often result in faculty (22) being
compared relative to other faculty, (23) being ranked relative other faculty,
(24) with distinctions often being made on the basis of tenths of a decimal,
(25) with most courts accepting these fine decimal distinctions.
Rulings on The Qualitative and Subjective
Assessment of SEF
Acceptance of Administrative Subjective
Judgements of SEF Data
..........An issue directly related to both
the reliance on and validity of SEF is views of the court regarding accepting
or not accepting subjective administrative judgements of SEF.
In Dyson v. Lavery (1976), the court found that
despite questionable errors it concluded that administrative judgements were
acceptable because, "they were sincere and grounded on some evidentiary
basis" (p.111); and (5) "In the absence of a finding that same were
sexually motivated, the administration's professional judgment must be
respected" (p.111).
In William Sypher v. Vermont State Colleges Faculty
Federation (1982), (7) sufficient evidence exists from which the Dean
and President could have reasonably concluded Sypher was not above average
in his teaching effectiveness; (8) the Board went on to say that if they
adopted the Colleges' view that Sypher was not reappointed because of his
teaching effectiveness, no argument advanced by him defending his teaching
was likely to persuade the President because his decision was made on the
"vigor and variety of student criticisms" (p.135).
In Carley v. Arizona Board of Regents (1987), The
court ruled (18) the University president was free to consider factual
findings made by minority members of the academic freedom and tenure
committee and any other evidence which he found relevant in determining
whether to deny renewal of teaching contract to non tenured instructor.
The president was not bound by factual findings made by majority members of
committee (p.1103).
In Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995), it was noted that (28) The Dean and the President
obviously had much experience in reviewing student evaluations, and could
reasonably draw on that experience in each tenure review. (p.311); judgements
"were not arbitrary or capricious and were exercised honestly upon
due consideration,"....that Deans and Presidents have "much
experience in reviewing student evaluations, and could reasonably draw on
that experience" (p.311).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), the court said, (40) "The relevance and quality
of the scores are "a matter of weight for the various decision-makers, and
we assume that they were reasonably aware of the limitations of student
evaluations and gave them the weight they deserve" (p.30).
In Robert Kramer v. The President of the University of
British Columbia (1992), the board concluded, "In the final analysis,
we feel that this review of the Head's comments on teaching, which would be
the sole evidence upon which the Dean and the President could rely, shows
that it was incomplete and might have been misleading" (p.12-14).
In University of Regina Faculty Association v. University
of Regina (1993), he Board said teaching was wrongfully evaluated, but
upheld denial of tenure on grounds of inadequate scholarship.
In Christopher Turner v. The President of the University
of British Columbia (1993), The board concluded that (11) "there were
sufficient errors of procedure and/or evidence to return the case for
reconsideration" (p.11).
Summary: Courts have tended to accept administrative subjective
judgements if (26) they are deemed sincere (27) grounded on some evidentiary
basis (28) if made on the "vigor and variety of student criticisms"
(29) "not arbitrary or capricious and were exercised honestly upon due
consideration," (30) based upon "much experience in reviewing student
evaluations, (31) reasonably draw on that experience (32) and have ruled that
Presidents are not bound by factual findings made by majority members of
a faculty.
Use of Qualitative Written Student Comments
..........Over and above quantitative data, the
use of written comments, often single instances, by students on their SEF seems
wide spread by both educational administrators, faculty evaluation committees,
and the courts.
In Dyson v. Lavery (1976), the course said (1) "A
number of students apparently had voiced displeasure over the quality of her
class preparation and presentation" (p. 111 (3) "These impressions"
said the court, "were largely confirmed after the initial decision to not
rehire her had been made, by a student evaluation that ranked her 46th of
48 teachers in the Business Department" (p.111, italics added).
In Johnson v. University of Pittsburgh (1977), the
court said, (3) "we have the instance referred to in Finding 27
(p.1359, italics added).
In Lieberman v. Grant (1979), the court noted (3)
based on complaints received from "several students," to
the effect that Lieberman's interest in feminism caused her to ignore other
themes in literature (p.873, italics added).
In William Sypher v. Vermont State Colleges Faculty
Federation (1982), (1) some of the student comments noted that, "When
students try to disagree he shoots you down and tries to degrade you in front
of the class," (p.115), while others said, "encourages student
participation as much as possible... encourages student to express their
ideas freely and not worrying how 'dumb' it may sound...always wants you
point of view." (P.115) (2) With regard to the numerical ratings, the
Board's opinion was that (3) "regardless of a strong majority of
students' rating his teaching as above average, (4) the existence of a
significant minority of students feeling degraded, humiliated, and
embarrassed can reasonably lead an evaluator to question a teacher's
effectiveness" (p.115).
In Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995), the Board said, (22) "the statistical
comparison does not take account of the comments made by students on the
evaluation forms. Grievant's student evaluations are striking in how often
mention is made of Grievant's communication difficulties, particularly
language difficulties (p.304-5). The board further noted with respect to
comments that while some students had written that she was a "slant eyed
bitch," and that she should "go back to China," (30) "We
also are not persuaded that the racism evident in the student evaluations of
Grievant made student evaluation results unreliable. The percentage of
evaluations in which racism by students was evident was approximately one
percent of the total evaluations" (p.306).
In Robert Kramer v. The President of the University
of British Columbia (1992), (2). The department Head viewed Kramer's
1989-90 course evaluations "with some alarm"....(4) Even more
disturbing to the department Head was that a considerable number of students
in their written comments stated that Dr. Kramer was biased sarcastic,
and hostile to the material and that a number of students had stated that
Dr. Kramer's teaching would cause them to stay away from the Asian Studies
department. (5) There were also some diametrically apposed positive
comments" (p.10).
In University of Regina Faculty Association v. University
of Regina (1993), The Board argued (6) that the University was under an
obligation to verify negative comments before acting on them. Consequently,
(7) the fact that Dr Jalan had received some negative evaluations from students
could not be used to undermine the otherwise generally favorable comments he
had received in his annual performance reviews" (p.4).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), the court noted that (25) "With respect
to the "qualitative" scores---i.e., the "comments," there
was a clear error. The qualitative comments from a number of courses were
read and commented on, and conclusions were drawn from them which went into
the "file." Both Reviewing faculty read and commented on them, as
did the Department Chair in her letter to the Dean. Yet the Dean had clearly
stated in a departmental memo that the qualitative comments were not to be
used for administrative or promotion purposes. (26) While in the abstract
there is no reason why such comments would not be relevant, if the Department
had a rule against their use, or in other words if they were "for the
professor's eyes only," then it was a significant breach of Departmental
rules to use them" (p.31). (27) In the opinion of the Board, so long as
the comments were fairly presented, they offered the PAT [Promotion and
Tenure Committee] and others a better balanced view of the teaching qualities
and problems of Dr. MacLean than the quantitative statements alone" (p.31).
(28) The court noted that "One problem with the questionnaire is that it
solicits bad points as well as good points. Despite that caveat, we conclude
that the inclusion of the qualitative comments was not a significant error"
(p.32).
Summary: The use of student comments ranges from (33) placing
importance on a single comment (34) to several comments as significant
information, (35) maintaining that statistical analyses of SEF need to be
bolstered by individual comments, (36) maintaining that while some very
negative---e.g., racist, sexist---comments may be found, the court may find
that they do not rendered the SEF unreliable, (18) that such instances or
"impressions" may be validated after the fact, (37) negative
comments often seem to outweigh positive ones, and (38) comments may often
outweigh numerical data to the contrary, (39) negative comments need not be
verified before acting on them, (40), that negative comments can not be used
to undermine otherwise generally favorable comments received in an annual
performance review.
Mixed Student Comments
..........Just as quantitative SEF data may
be bimodal, so too written student comments may also be bimodal or mixed.
How do courts view and pronounce on such data?
In Johnson v. University of Pittsburgh (1977), the
court noted (2) they "approached this question of teaching ability with
considerable doubt, in view of the fact that in prior years there does not
appear to have been any criticism of her teaching and also in view of the
fact that...there was evidence that the department chairman, had informed
her after one of her lectures in 1971 what a great lecture it had been";
On the other hand, the court said (3) "we have the instance
referred to in Finding 27 (p.1359, italics added).
In Fields V. Clark University (1987, it was observed
(3) a few of which, from students in Fields' seminars, were "wildly
enthusiastic" about her enthusiasm, commitment and presentations; (4) a
few were ambivalent; (5) with a considerable number being extremely negative,
particularly (6) with regard to her large lecture classes in basic courses
in sociology.
In Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995), moreover, they said, (19) "The statistical
comparison demonstrates that Grievant was evaluated higher by students than
[her male colleague] with respect to upper level classes, but that (20) [the
male colleague] was evaluated higher than Grievant in lower level classes.
Given (21) this "mixed" result, the statistical comparison of
evaluations does not demonstrate by a preponderance of the evidence that
Grievant's students rated her the same, or better, than [male
colleague]" (p.305).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), it was noted that (20) In general, the in-class
peer reports were mixed but favourable. The in-class discussions were more
problematic. (p.30). (21) While the knowledge, interest and enthusiasm of
Dr. MacLean were acknowledged, "the problem appeared to be one of style
or personality." It was further noted that (29) "As against the low
figures, they disclosed a number of good qualities in Dr. MacLean---enthusiasm
for his subject, wide knowledge of the literature, much out of class
assistance to students, and a commitment to seeking good work from
students. (p.31). (30) The reviewing faculty report noted the comments about
Dr. MacLean's "derogatory manner, biased opinion, unwillingness to
listen," were matched by "clear, stimulating, very helpful after
class." And, (31) "some students have told us that the comments made
were not representative of the class as a whole and were unduly influenced
by the process" (p.41). (32) "A number of students, both from
earlier years and from his current classes, furnished letters of support,
and in preparation for the appeal, some furnished affidavits with respect
to particular matters such as the 'intimidation' discussion in Soc. 250 and
events in Soc. 490 and 520 in the fall of 1989." (p.33)
In Robert Kramer v. The President of the University of
British Columbia (1992). (16) While a number of negative student comments
were quoted in the department Head's letter, there were a number of very
positive comments, and these were not mentioned at all. (25) "We have
examined all of these written comments. There was a very wide range of
comments. There were not 29 comments saying sarcastic and biased comments;
but there were certainly 29 comments which included either cynical, sarcastic,
biased, insulting, negative, condescending, belittling, opinionated,
arrogant, nihilist, and destructive.... (29) However, it would only be fair
to add that there were a number of comments in favour of Dr. Kramer, stating
that the student "liked the course immensely," "now interested
in Asian Studies"; "helps create a relaxed atmosphere," "really
enjoyed him," "very approachable and knowledgeable," "very
enthusiastic," "captivates audiences with his humour," "very
effective" (p.12). (30) "In the other two courses, both small,
both Japanese language, there were also some negative comments" (p.12).
In Christopher Turner v. The President of the University
of British Columbia (1993), the board noted that (6) "While there is
no question of Dr. Turner's competence as a teacher at all levels, teaching
evaluations for the last several years show that his effectiveness is marred
by what students perceive as excessive formality, lack of enthusiasm and
dullness....In a previous promotion attempt, his teaching was briefly described
as "very competent" but student evaluations indicate further
improvement to be "better than adequate" (p.2).
Summary: With regard to non numerically assessed written student
comments, they are often qualitatively characterized as (41) a few were
ambivalent, (42) a considerable number, (43) of mixed result, and selectively
recognized: (44) it would only be fair to add that there were a number of
comments in favor, (45) there were also some negative comments, (45) sometimes
placing the greater weight on past evaluations of teaching over current
comments, (47) sometimes placing greater weight on current comments over past
positive evaluation of teaching.
Variables Not Taken Into Account When Assessing SEF
Student Biases in Affecting SEF
..........A significant issue is how
courts view variables in assessing the reliability and validity of SEF
is student bias affecting their evaluation of faculty.
In Johnson v. University of Pittsburgh (1977), the
court noted that (10) "It has also been pointed out that in some cases
difficult courses have to be given to the students and the material is such
that it is difficult for even the best teacher to get it across.
In Carley v. Arizona Board of Regents (1987), he
(7) characterized his professional style as being a "demanding teacher
contrary to some student expectations," (8) Because of this, he maintained
his popularity suffered and resulted in low student evaluations, (9) examination
of his student comments indicated that Carley was correct in his assessment as
61% (49 out of 80) negative student comments focused on these values. The court
ignored these findings.
In Dr. Brian Maclean v. President of The University
of British Columbia (1991), it was noted that (21) While the knowledge,
interest and enthusiasm of Dr. MacLean were acknowledged, "the problem
appeared to be one of style or personality."
In Robert Kramer v. The President of the University of
British Columbia (1992), the Board noted that (26) It was obvious that
almost all of the classes were upset about an examination which was considered
more geography than Asian Studies, and (27) they didn't like the marking.
(28) They also felt the workload was far too heavy for an "introductory"
course. The Board apparently only noted this variable.
Summary: Student bias variables include (48) being a demanding
teacher, (49) thus thwarting student expectations, (50) difficult
examinations (51) grading, (52) heavy workload in a course. (53) While most
courts ignore these student biases in SEF, (54) occasionally a court will
recognize that difficult courses have to be given to the students and that
such material is difficult for even the best teacher to get the material
across.
Other Variables
..........Cases concerned with the validity
of SEF note various factors that were not controlled in the evaluation of the
faculty process. Courts sometimes weigh these factors heavily, sometimes
they do not.
In Lieberman v. Grant (1979), Lieberman attempted
to introduce approximately ten personnel files concerning the tenure
proceedings of other faculty in the English department for comparison.
(6) Recognizing that such evidence would have had some minimal probative
value, the Court, exercised its discretion under Fed. R.Ev. 403, and excluded
it on the ground that "such probative value would be substantially
outweighed by the delay and waste of time, which introduction of such
evidence would have necessarily entailed....The plaintiffs case without
such evidence seemed almost interminable, consuming 52 trial days over a
two-year period. That is long enough" (p.873).
In Fields V. Clark University (1987) the court notes
but does not admonish the non separation of student remarks from small seminar
courses and those from large lecture classes.
In Cynthia J. Fisher v. Vassar College (1995), the
district court found (2) that the biology department distorted Fisher's
teaching recommendations by (3) "selectively exclud[ing] favorable
ratings," by "focus[ing] on the two courses in which Dr. Fisher had
difficulties" and (4) by "applying different standards to her than were
applied to other tenure candidates" (p.1209).
In Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995), it was noted that (19) "The statistical comparison
demonstrates that Grievant was evaluated higher by students than her [male
colleague] with respect to upper level classes, but that (20) [male colleague]
was evaluated higher than Grievant in lower level classes." Given (21) this
"mixed" result, the statistical comparison of evaluations does not
demonstrate by a preponderance of the evidence that Grievant's students rated
her the same, or better, than [male colleague]" (p.305). Wei maintained
that (16) her students rated her the same or higher than the male colleague's
students rated him. The Board disagreed, saying, (19) "We note that the
comparison offered by Grievant is somewhat weak since [male colleague] was
tenured in 1988, and those student evaluations of his which were compared with
Grievant post-dated his tenure review by a number of years"...further saying,
"we decline to hold such an involved comparison is necessary before a
reasonable tenure determination can be made" (p.305).
In Dr. Brian Maclean v. President of The University of
British Columbia (1991), the Board noted that (19) the reviewing faculty
held in-class discussions about his teaching.
In Robert Kramer v. The President of the University of
British Columbia (1992), Kramer argued that the most significant mistake
was the failure to consider all aspects of his teaching. For example, only
his teaching in 1989-90 was considered, whereas (9) he had taught a wide range
of courses over the previous three years (10) had three new courses that year,
(11) plus a graduate course. Moreover, (17) The department head indicated that
his teaching was not up to the departmental "standard." The standard
appeared to be the performance of the tenure-track faculty, though Kramer
was one of the most junior faculty members (p.8). (15) Only one of the more
than thirty numerically rated questions was used: "Rate instructor bad
to good." (16) While a number of negative student comments were quoted
in the department Head's letter, there were a number of very positive comments,
and these were not mentioned at all.
In Christopher Turner v. The President of the University
of British Columbia (1993), the Dean said, "there were few students
in undergraduate literature courses since 1986/7---(3,8, and 6 respectively,"
thus mistaking student 'response' figures for actual student enrolment. The
Board concluded that (5) "This misunderstanding is in our opinion
sufficient in itself for a reconsideration, since teaching was the focus..."
(p.3), and (7) "we think that the comments and emphasis on the size of
Dr. Turner's classes as evidence of poor teaching are open to objection and
constitute errors of procedure and/or evidence" (p.6).
Summary: The variables noted in these cases include, (55) not
controlling for class size, i.e., those obtained in small seminars from those
obtained in large lecture classes, (56) those obtained from tenured faculty
from those obtained from non tenured junior faculty, (57) not performing
appropriate comparisons of SEF with other faculty, (58) noting SEF in all
courses, not just to problem courses, (59) not mistaking student 'response'
figures for actual student enrolment figures when using them to determine
student attraction to a course, (60) using all courses taught, (61) taking
into consideration the faculty teaching a wide range of courses, versus those
with lighter teaching loads, (62) number of new courses taught in a year,
(63) whether graduate courses were taught at the same time as teaching
undergraduate courses, (64) selectively mentioning only negative student
comments, or (65) overly weighting negative comments, and (66) different
procedures for gathering student opinion.
Courts Impact On Academic Matters
Impact on Academic Standards
..........It has historically been the case
that faculty as a collective body and the institution set the expected
level of student performance.
In William Sypher v. Vermont State Colleges Faculty
Federation (1982), it was observed (9) With regard to the "political"
aspect of the case, Sypher had written a letter in defense of his student
rating level at the college which said, "it is certainly distressing when
very good is not good enough, especially at a college with a modestly-talented
student body that often discourages efforts at subtlety, wit and deeper
penetration of subjects." (10) The Board responded to this letter saying,
"other actions and statements by Grievant constituted legitimate reasons
for not retaining him. In a May, 1980, letter to, Dean Beston, Grievant
expressed his contempt for Castleton students" (p.135), (11) concluding,
"Accordingly, we find credible the College's contention that Grievant
was not reappointed because of his teaching effectiveness. [Italics
added] (p.135).V.
In Lovelace v. Southeastern
Massachusetts University (1986), the court said, (4) A school sets itself
up to attract and serve only the best and the brightest students or whether it
instead gears its standard to a broader, more average population is a policy
decision which, we think universities must be allowed to set....matters such
as course content, homework load, and grading policy are core university
concerns (p.424).19
In Robert Kramer v. The President of the University of
British Columbia (1992), the Board said (30) "One perceptive student
noted that some of the unhappiness came from the fact that the levels of
Japanese language ability were badly divided; some found it easy, others
very hard" (p.12).
Summary: From the above limited cases, the courts have clearly
said (67) universities must be allowed to set (68) standards, including (69)
course content, (70) homework load, and (71) grading policy.
Methods of Instruction and Academic Freedom
..........It is generally accepted that
academic freedom clearly pertains to speech in the classroom. In like manner,
most faculty seem to believe that academic freedom also pertains also to
how a course is taught. How do courts view teaching method in relation to
SEF an academic freedom?
In Lovelace v. Southeastern Massachusetts
University (1986), the court's ruled, (1) "It is important to note
what plaintiffs first amendment claim is and to separate speech from action.
Plaintiff has not contended that he was retaliated against simply because he
advocated that the university elevate its standards.... Plaintiffs complaint
instead is that he was retaliated against when he refused to change his
standards" (p.425), (2) citing other cases, the court rejected his
contention that university teacher has first amendment right to disregard
established curriculum content, that the first amendment does not prevent a
university from terminating an untenured faculty whose pedagogical style and
philosophy does not conform to those of the school's administration,
(3) "is a policy decision which, we think, universities must be allowed
to set" (p.426). Further, the court ruled that (4) "We will assume
for purposes of this opinion that plaintiffs refusal to lower his standards
was a substantial motivating factor, (see Mount Health Board of Education
v. Doyle, 429 U.S. 274, 283-284, 97 S.Ct. 568, 574-575,50 LEd.2d 471 (1977),
in the decision not to renew his contract.
In Carley v. Arizona Board of Regents (1987), (4) he
claimed as "protected speech" his teaching methods where his goal
in his commercial art course was to promote a business atmosphere by
requiring attendance, promptness, and self-reliance, and required them to
meet deadlines. The court ruled, (19) his teaching style is not a form of
speech protected under the First Amendment. (20) Decision not to retain a
non tenured instructor, even if based, in part, upon student evaluations
expressing disapproval of his teaching methods, did not violate instructor's
First Amendment right to academic freedom; (21) Carley was not denied a
contract because of expressing unpopular opinions or otherwise presenting
controversial ideas to his students. (22) Thus, we conclude that the decision
not to retain Carley, even if based, in part, upon student evaluations
expressing disapproval of his teaching methods, did not violate his first
amendment rights. (p.1103).
Summary: Teaching method (72) because it is an action, not speech,
(73) is not a form of free speech, nor (74) covered under academic freedom,
(75) except if noted in specific contractual faculty agreements.
Release of SEF To Students and To the Public
..........In addition to the administrative
use of SEF, in recent years, other uses of SEF have become controversial,
including releasing SEF to students and to the public.
University of Idaho: A legal
ruling, cited on the World Wide Web site of the Topical Interest Group:
Assessment in Higher Education (Evaluating teacher evaluations, 1996),
20 notes that the University of
Idaho also recently went to court over the issue of whether SEF can be
published. The student newspaper initiated a lawsuit when it was refused access
to SEF for publication. The legal question was whether SEF is protected under
privacy rights by the Idaho Code. In a ruling that seems to strain logical
credulity the court ruled that since the University did not consider students
as the general public, the University was not breaking the law by allowing
students access to the evaluations. Further, the opinion of the court was
that according to State law, teacher evaluations are not protected as part
of personnel records.
University of Wisconsin: In another ruling, the
Chancellor at the University of Wisconsin refused to release SEF, citing a
statute that disallows personnel evaluations from being released to public
view. Students took the chancellor to court. However, after being advised
by the state's Attorney General, citing Wisconsin's open-records law, the
University of Wisconsin's campus released SEF to the public. Both the student
and faculty senates, passed resolutions in support of the Chancellor's refusal,
and the university's lawyer concurred. Despite these resolutions, the Attorney
General disagreed, writing that "the requested records are public records
and the university's stated reasons for withholding access do not outweigh the
public interest in the records" (Chronicle of Higher Education, 1994a,
1994b).
Summary: (76) Unlike most personnel records, SEF can be
released to students and the public, on the grounds, that (77) students
are not considered the general public, and (78) that SEF are public
records and withholding them from public access does not outweigh the
public interest in them.
Conclusion
..........From the above cases, it is clear
that "a view from the courts" on SEF does not mean a coherent
set of rulings. Given the lack of legal attention to SEF, this is not
surprising. A collectively incoherent set of rulings, however, is not
restricted to the concept of SEF but for the time-honored concept of academic
freedom as well. As Kaplin and Lee (1995) conclude,
The foregoing discussions have made clear that academic
freedom is an area in which the law provides no firm guidelines for
administrators. This is particularly true for private institutions, since
the decided cases are almost all constitutional decisions applicable only
to public schools. Even the constitutional cases are sometimes incompletely
reasoned or difficult to reconcile with one another. The fact that decisions
often depend heavily on a vague balancing of faculty and institutional
interests in light of the peculiar facts of the case makes it difficult to
generalize from one case to another (p.192).
When we speak of "the courts," then, we are speaking of a hydra
with some common but many disparate voices.
..........Given the above rulings and the courts
propensity to accept faculty/institutional agreements, it would seem clear as
Kaplin and Lee advise, that, "it is especially crucial for institutions
to develop their own guidelines on academic freedom and to have internal
systems for protecting academic freedom in accordance with institutional
policy" (p. 192). This would appear to be especially true for SEF policy.
..........From most of
the above cases---even given that, as challengers, the burden of proof has been
on faculty --- it seems clear that the courts have not been kind to faculty
with regard to student evaluations.21
It is the burden of the two following papers to explore, analyze, and comment
on the implications of the views from the court presented here.
|
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|
Appendix C: Abstracted Case Material
..........From each case, I abstracted out the
material that was relevant to teaching effectiveness and SEF.
I. Dyson v. Lavery, (1976).
..........Patricia Dyson, a lawyer, hired to teach
in the Business Department at Virginia Polytechnic Institute (VPI) in February,
1970, When VPI failed to renew her contract, she filed suit against the
president of the university alleging sex and salary discrimination in both her
initial employment and in the decision not to renew her contract. The court
carried out a compete statistical analysis of salary and promotion by gender.
..........In terms of her teaching, the court said,
"the Business Department Administrators testified that (1) the input
received through normal channels for Ms. Dyson's teaching performance had been
generally negative. A number of students apparently had voiced displeasure over
the quality of her class preparation and presentation" (p. 111) and (2)
she refused to follow normal procedures not posting student grades;
(3) "These impressions" said the court, "were largely confirmed
after the initial decision to not rehire her had been made, by a student
evaluation that ranked her 46th of 48 teachers in the Business Department."
Further, it was ruled that, (4) "The Court need not consider the accuracy
of these administrative determinations, for it concludes that they were sincere
and grounded on some evidentiary basis" (p.111); and (5) "In the
absence of a finding that same were sexually motivated, the administration's
professional judgment must be respected" (p.111 all italics added). The
Court concluded that Dyson's termination was not the product of sex
discrimination.
II. Johnson v. University of Pittsburgh (1977).
..........Sharon Johnson was an assistant professor
at the University of Pittsburgh in the Biochemistry Department of the School of
Medicine. At the end of her second three-year contract as an assistant
professor, the university decided not to promote her to the rank of associate
professor and not to grant her tenure. She contended that her termination was
based on sex discrimination. The University of Pittsburgh, on the other hand,
claimed that the denial of promotion and tenure was a result of Johnson's
inadequacy as a teacher and as a researcher and writer.
..........The tenured faculty (1) described her
teaching as "disastrous" and stated she demonstrated "a virtually
complete inability to organize and convey a substantive body of information
to students"; (2) the court noted they "approached this question of
teaching ability with considerable doubt, in view of the fact that in prior
years there does not appear to have been any criticism of her teaching and
also in view of the fact that at...there was evidence that the department
chairman, had informed her after one of her lectures in 1971 what a great
lecture it had been"; On the other hand, the court said, (3) "we have
the instance referred to in Finding 27 and the fact that in recent years
increasing weight has been placed upon teaching ability"; (4) "We
further have an evaluation by another faculty who impressed the court as
completely impartial and credible who stated...that plaintiff's teaching
performance was inadequate"; in addition, (5) "The court has placed
little reliance on students' surveys. The value of these surveys was
deprecated by the Dean and it was further testified that student surveys
always result in the students in a given course rating a teacher, or professor,
some of them as excellent, others as terrible and in between many who say
passable, mediocre etc"; (6) "While the court is reluctant to rely
upon student's surveys as demonstrating the fitness or unfitness of a faculty
member nevertheless we cannot say it was unreasonable for the tenured faculty
to consider this along with other matters in the meeting" (p.1359).
..........(7) Citing a previous case (International
Brotherhood of Teamsters v. U. S, -- U.S. --, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977), where in a class action case the court cited McDonnell Douglas for
the use of statistics) went on to say: "We have repeatedly approved the
use of statistical proof where it reached proportions comparable to those in
this case to establish a prima facie case of racial discrimination in jury
selection cases . . Statistics are equally competent in proving employment
discrimination. We caution only that statistics are not irrefutable. They come
in an infinite variety and, like any other kind of evidence they may be
rebutted. In short, their usefulness depends on all of the surrounding facts
and circumstances" (8) The court further in Footnote # 20 said:
"Considerations such as small sample size may of course detract from the
value of such evidence" (p.1361); the court also noted, "It is
obvious that a professor may be possessed of excellent qualifications as a
research scientist and not necessarily be able to prove his or her worth as
a teacher. It is also obvious that the court and the administration of
universities cannot permit students to exercise a veto over professors who may
be world renowned scientists and yet if the students rate them unfavorably
can be terminated at any time because of unpopularity"; concluding that,
(9) "in cases where one has an outstanding scientist of national or
international reputation, one may decide to promote and give tenure
notwithstanding inability to come across as a teacher, this however is not
one of those cases. Finally, it said, (10) "It has also been pointed
out that in some cases difficult courses have to be given to the students
and the material is such that it is difficult for even the best teacher to get
it across. (11) The court finds the weight of the evidence is that plaintiff's
teaching was not adequate and while there are some allegations to the
contrary and there had previously been no criticism of her performance,
nevertheless the court cannot say that the tenured faculty was unreasonable
in considering this factor and in arriving at the conclusion they
did" (p.1366-7).
III. Peters v. Middlebury College, (1977).
..........Joan Peters file suit against Middlebury
College for sexual discrimination after her being denied reappointment on
the basis of her scholarship and teaching. The basic reason for the denial of
reappointment was that she did not meet the standards of professional
competence, especially in the upper division courses to which the English
department aspired.
..........With regard to her (1) student
evaluations, they were varied but with support for Peters predominating, but
it was said that the students "ability to evaluate in the advanced and
specialized areas of the English department was not established" ( p.867).
(2) The department chair sent a letter to the president of the college,
saying, "The course of action I recommend is not likely to be popular
with students who, though they in part recognize her intellectual limitation,
are warmly responsive to her enthusiasm, energy, openness and ready human
concern" (p.860). (3) The court ruled that "the reasons given by the
institution for non promotion showed that by a preponderance of the evidence
she was not professionally qualified for tenure and that the reasons given
were not pretextual, and that there was substantial evidence to show that
plaintiff's teaching was not satisfactory....(4) An evaluation of one's
teaching ability is necessarily a matter of judgment. (5) A professor's value
depends upon his creativity, his rapport with students and colleagues, his
teaching ability, and numerous other intangible qualities which cannot be
measured by objective standards" (p.860). Court found that she did not
merit tenure, but was discriminated against.
IV. Lieberman v. Grant, 474 F.Supp. 848 (D.Conn. 1979).
..........Marcia R. Lieberman was hired by the
University of Connecticut English department. Among her allegations was
sex discrimination, but prior to her tenure review, she had been repeatedly
warned by her department and its personnel committee that she had inadequacies
in both teaching and scholarship.
..........(1) A five member departmental promotion
and tenure committee all voted for tenure on the initial preliminary vote.
After (2) being sent to a joint faculty committee on her department chair's
negative recommendation (3) based on complaints received from "several
students", to the effect that Lieberman's interest in feminism caused
her to ignore other themes in literature, on close vote she was denied
tenure; (4) a compilation of student ratings was showed that the cumulative
ratings for members of the department ranged from a low of 4.09 to a high of
8.95. She had a cumulative rating of 7.06, which ranked her 12th out of the
15 junior faculty members. The 7.06 figure included the ratings from a previous
semester in which the plaintiff received a rating of 8.18. Prior to this
rating in the spring of 1972, the plaintiff's cumulative rating was 6.7;
(5) Lieberman also attempted to introduce approximately ten personnel files
concerning the tenure proceedings of other faculty in the English department
for comparison; (6) Recognizing that such evidence would have had some
minimal probative value, the Court, exercised its discretion under
Fed. R.Ev. 403, and excluded it on the ground that "such probative value
would be substantially outweighed by the delay and waste of time, which
introduction of such evidence would have necessarily entailed....The plaintiffs
case without such evidence seemed almost interminable, consuming 52 trial
days over a two-year period. That is long enough" (p.873). The court
concluded that sexual prejudice did not play any significant role in the
tenure proceedings.
V. William Sypher v. Vermont State Colleges Faculty
Federation (1982).
..........A faculty member contented that he was
denied reappointment by Castleton State College, after his third year violated
his academic freedom rights as stated in the faculty collective bargaining
agreement. The faculty contended he was not reappointed because of his
"political" activity on campus. The college contented he was not
reappointed because of his inadequate teaching evaluations.
..........(1) Some of the student comments noted
that, "When students try to disagree he shoots you down and trys to
degrade you in front of the class," (p.115), while others said,
"encourages student participation as much as possible... encourages
student to express their ideas freely and not worrying how 'dumb' it may
sound...always wants you point of view." (P.115) (2) With regard to the
numerical ratings, the Board's opinion was that (3) regardless of a strong
majority of student's rating his teaching as above average, (4) the
existence of a significant minority of students feeling degraded, humiliated,
and embarrassed can reasonably lead an evaluator to question a teacher's
effectiveness; (5) the negative student evaluations are buttressed by the
Chair of the Education Department; (6) were it not for this incident, it
would be difficult for the Dean and President to support their subjective
opinion that Sypher was not substantially above average in teaching
effectiveness, given a statistical analysis of student evaluations
demonstrating a strong majority of students believed to the contrary;
(7) sufficient evidence exists from which the Dean and President could have
reasonably concluded Sypher was not above average in his teaching
effectiveness; (8) the Board went on to say that if they adopted the
Colleges' view that Sypher was not reappointed because of his teaching
effectiveness, no argument advanced by him defending his teaching was
likely to persuade the President because his decision was made on the
"vigor and variety of student criticisms."
..........(9) With regard to the "political"
aspect of the case, Sypher had written a letter in defense of his student
rating level at the college which said, "it is certainly distressing
when very good is not good enough, especially at a college with a
modestly-talented student body that often discourages efforts at subtlety,
wit and deeper penetration of subjects." (10) The Board responded to this
letter saying, "other actions and statements by Grievant constituted
legitimate reasons for not retaining him. In a May, 1980, letter to, Dean
Beston, Grievant expressed his contempt for Castleton students" (p.135),
(11) concluding, "Accordingly, we find credible the College's contention
that Grievant was not reappointed because of his teaching effectiveness.
[Italics added] (p.135).
VI. Lovelace v. Southeastern Massachusetts University,
793 F.2d 419 (1st Cir.1986).
..........Matthew Lovelace, a non tenured
faculty at Southeastern Massachusetts University, challenged the decision not
to renew his contract based on various constitutional claims, including a claim
that the use of student ratings violated his academic freedom. He contended
that his contract had not been renewed because he had refused to inflate his
grades or lower his standards, and therefore his First Amendment academic
freedom rights had been violated. More specifically, he maintained that in
response to student complaints that his homework assignments were too time
consuming and that his courses were too hard, the university first threatened
not to renew plaintiff's contract unless he appeased the students. When he
refused to lower his standards, his contract was not renewed.
..........In the court's ruling it said,
(1) "It is important to note what plaintiffs first amendment claim is and
to separate speech from action. Plaintiff has not contended that he was
retaliated against simply because he advocated that the university elevate its
standards.... Plaintiffs complaint instead is that he was retaliated against
when he refused to change his standards" (p.425), (2) citing other cases,
the court rejected his contention that university teacher has first amendment
right to disregard established curriculum content, that the first amendment
does not prevent a university from terminating an untenured faculty whose
pedagogical style and philosophy does not conform to those of the school's
administration, (3) "is a policy decision which, we think, universities
must be allowed to set" (p.426). Further, the court ruled that
(4) "We will assume for purposes of this opinion that plaintiffs refusal
to lower his standards was a substantial motivating factor, (see Mount Health
Board of Education v. Doyle, 429 U.S. 274, 283-284, 97 S.Ct. 568, 574-575,
50 LEd.2d 471 (1977), in the decision not to renew his contract...Whether a
school sets itself up to attract and serve only the best and the brightest
students or whether it instead gears its standard to a broader, more average
population is a policy decision which, we think universities must be allowed
to set....matters such as course content, homework load, and grading policy
are core university concerns, integral to implementation of this Policy
decision. (p.424).
VII. Fields V. Clark University (1987).
..........Fields (Neither first name nor
academic degree level was cited) taught at Clark University in the
sociology department. While Field's scholarship and contributions to the
university were considered adequate, they were deemed by various reviewing
groups not to be so outstanding as to overcome deficiencies in her teaching.
Fields contended she was being discriminated against on the basis of her sex.
..........In support of the collective opinion
that (1) Fields was a poor teacher, the university (2) submitted a group of
student evaluations, (3) a few of which, from students in Fields' seminars,
were "wildly enthusiastic" about her enthusiasm, commitment and
presentations; (4) a few were ambivalent; (5) with a considerable number being
extremely negative, particularly (6) with regard to her large lecture classes in
basic courses in sociology. The students (7) complained that the plaintiff's
courses were disorganized. that there was no correlation between reading assignments
and the course work and (8) that the plaintiff herself was often unprepared and
(8) unresponsive to students' needs, with (9) one student saying that her
performance was so bad that it was a principal reason for her leaving the
university.
..........The court noted that (10) Fields'
"attacks" the university's use of her student evaluations because
they were not gathered and evaluated according to accepted standards of
scientific polling procedures. In response, the court agreed, saying, "She
is probably correct. The use made of the student evaluations in her case,
however, followed the practice at the defendant university in other tenure
decisions" (P.671). On the findings of sexual discrimination the court
ruled in Fields' favor.
VIII. Carley v. Arizona Board of Regents, (1987).
..........Denny Carley was denied reappointment by
Northern Arizona State University where he taught in the department of art as
assistant professor. The denial was largely on the basis of student evaluations
of his teaching. This appeal is from a superior court judgment affirming a
decision of Northern Arizona University President to deny the renewal of a
teaching contract to Carley. The issues on appeal involved: (1) whether his
right to academic freedom was violated because student evaluations were
utilized as the primary tool to determine his teaching effectiveness,
(2) whether the President abused his discretion by rejecting the findings of
the majority of the Academic Freedom and Tenure Committee and (3) whether there
was substantial evidence to support the President's decision.
..........In term of his teaching, (1) of the 13
faculty in his department of art, he was ranked fifth, (2) by his chairman he
was ranked seventh, (3) student evaluations, however, ranked him last: 13th
of 13. (4) Carley identifies as "protected speech" his teaching
methods where his goal in his commercial art course was to promote a business
atmosphere by requiring attendance, promptness, and self-reliance, and required
them to meet deadlines. (6) He considered this approach part of the content
of his class. (7) He characterized his professional style as being a
"demanding teacher contrary to some student expectations."
(8) Because of this, he maintained his popularity suffered as reflected in his
low student evaluations. (9) An examination of student comments on the
evaluation forms indicated that Carley was correct in his assessment as
61% (49 out of 80) negative student comments focused on these values.
..........(10) Carley maintained that because
student evaluations were critical of those methods, the student evaluations
challenged his academic freedom rights, concluding that the student evaluations
cannot be used as the primary basis for failing to renew his contract (p.1101).
(11) With the ACLU, Carley filed suit, with his attorney saying, "Our
primary argument is that it's a violation of academic freedom---he wasn't doing
anything that wasn't in line with being a demanding teacher.
..........(12) A departmental review committee
voted for non-reappointment, (13) but the department chair disagreed,
recommending to the dean that the appointment be renewed. (14) The
University-wide Academic Freedom and Tenure committee, with a 6 to 3 vote,
also decided in the Carley's favor, finding "improper use of the student
evaluation instrument, a de facto violation of academic freedom, [and] personal
prejudice" which "constitutes substantive violation of due process."
(15) They further found that the judgment of his teaching effectiveness had been
"based wholly on student evaluations" which have "no objective
validity as a measure of teaching effectiveness." (See Heller, 1986, italics
added) (16) Three dissenting members of the committee filed a minority report,
finding that his department colleagues had treated the faculty member fairly
and that student evaluations were only one of several criteria in judging his
teaching effectiveness.
..........(17) The president reviewed Carley's
case and found justification for not supporting his reappointment. The court
ruled (18) the University president was free to consider factual findings made
by minority members of academic freedom and tenure committee and any other
evidence which he found relevant in determining whether to deny renewal of
teaching contract to non tenured instructor. The president was not bound by
factual findings made by majority members of committee.
..........(19) It was said that Carley "paints
with too broad a brush the concept of academic freedom," since his teaching
style is not a form of speech protected under the First Amendment. (20) Decision
not to retain a non tenured instructor, even if based, in part, upon student
evaluations expressing disapproval of his teaching methods, did not violate
instructor's First Amendment right to academic freedom; (21) Carley was not
denied a contract because of expressing unpopular opinions or otherwise
presenting controversial ideas to his students. (22) Thus, we conclude that
the decision not to retain Carley, even if based, in part, upon student
evaluations expressing disapproval of his teaching methods, did not violate
his first amendment rights. p.1103. (23) Carley has cited no authority that
relying primarily or solely on student evaluations would be impermissible.
We have found none. p.1105 Denial of reappointment was upheld.
IX. Robert Kramer v. The President of the University of British Columbia (1992).
..........Kramer, an American citizen, was Assistant
Professor in the Department of Asian Studies, Faculty of Arts, whose first
two-year reappointment was denied. Kramer maintained that there were errors
of procedure, failures to obtain relevant evidence, and that the denial was
based on a defective dossier.
..........(1) The department vote was 4:3, against
reappointment. The department Head also did not recommend reappointment.
(2). The department Head viewed Kramer's 1989-90 course evaluations "with
some alarm." (3) The numerical scores were among the lowest of the tenure
track faculty. (4) Even more disturbing to the department Head was that a
considerable number of students in their written comments stated that Dr.
Kramer was biased sarcastic, and hostile to the material and that a number of
students had stated that Dr. Kramer's teaching would cause them to stay away
from the Asian Studies department. (5) There were also some diametrically
apposed positive comments. (6) Since the course was the general introduction
to the subject and the Department, such negative comments were of great
concern to the department Head.
..........(7) Kramer argued that the most
significant mistake was the failure to consider all aspects of his teaching,
as outlined in Article 4.02. (8) Only his teaching in 1989-90 was considered,
whereas (9) he had taught a wide range of courses over the previous three
years (10) had three new courses that year, (11) plus a graduate course. The
basic course, Asian 105 had 220 students, making it numerically the largest
class per faculty member in the department (Even though it was shared between
two instructors). (12) his graduate teaching was entirely ignored, and (13)
only the formal student evaluations were considered, with no peer evaluation.
(14) Student evaluations were considered from the standpoint of his popularity,
not his effectiveness. (15) Only one of the over thirty numerically rated
questions was use: "Rate instructor bad to good". (16) While a number
of negative student comments were quoted in the department Head's letter,
there were a number of very positive comments, and these were not mentioned
at all. (17) Department head indicated that his teaching was not up to the
departmental "standard". The standard appeared to be the performance
of the tenure-track faculty, though Kramer was one of the most junior
faculty members.
..........The board of appeals responses included,
(18) "The most important perceived error in the teaching evaluation, in
the opinion of the Board, is the reliance solely upon the student evaluations
and written comments for the 1989 course evaluations. There was no peer review
at all; no member of the Department audited any of Dr. Kramer's lectures.
There was, therefore, nothing to guide the Department but the student comments,"
and "no way to test the accuracy or fairness of the undoubtedly disturbing
comments in Asian Studies" (p.10). (19) "Given that the Departmental
procedure is to set aside a class hour for class discussion without faculty
present, with the written evaluations and comments made during the same hour,
there is a danger that some negative class commentary will dominate the
discussion and will not be the 'independent' opinion of all of the students.
(20) This is especially true in the context of the direction to assess
"effectiveness" versus "popularity" (p.10). However, the
board noted (21) "As for the 'popularity vs. effectiveness' debate, a
discouraging or hostile attitude is a part of effectiveness as much as it is
of popularity" (p.8). (22) "We recognize that the strong negative
comments...may have [been] received...too late in the first year to have any
peer teaching assessments in that particular class, but there does not appear
to have been any attempt to see if the apparent problem had continued in
September or October of 1990 in any courses, or (23) if the student
perception was accurate and fair" (p.10).
..........The board further noted, "In the
result, one got a 2.82 and one got a 3.07, and Dr. Overmyer cautiously and
generously assigned the higher rating to Dr. Kramer the difference is
statistically invalid in any event. But any rating at all in this course is
suspect. (24) Further, it is the largest class in the Department, and large
classes generally attract lower scores. Dr. Kramer's scores in the other two
courses were higher--3.45 in one, 3.91 in another, against a "faculty
average" of 4.22. As his counsel pointed out, that is a comparison against
regular faculty, mostly senior and tenured" ( p.10-11). (25) "We have
examined all of these written comments. There was a very wide range of
comments. There were not 29 comments saying sarcastic and biased; but there
were certainly 29 comments which included either cynical, sarcastic, biased,
insulting, negative, condescending, belittling, opinionated, arrogant,
nihilist, and destructive... [but] (26) It was obvious that almost all of the
class were upset about an examination which was considered more geography
than Asian Studies, and (27) they didn't like the marking. (28) They also felt
the workload was far too heavy for an "introductory" course.
(29) However, it would only be fair to add that there were a number of
comments in favour of Dr. Kramer, stating that the student "liked the
course immensely", "now interested in Asian Studies";
"helps create a relaxed atmosphere", "really enjoyed him",
"very approachable and knowledgeable", "very enthusiastic",
"captivates audience with his humour", "very effective"
(p.12). (30) "In the other two courses, both small, both Japanese
language, there were also some negative comments. One perceptive student noted
that some of the unhappiness came from the fact that the levels of Japanese
language ability were badly divided; some found it easy, others very hard"
(p.12).
..........The board concluded, "In the final
analysis, we feel that this review of the Head's comments on teaching, which
would be the sole evidence upon which the Dean and the President could rely,
shows that it was incomplete and might have been misleading, due to the total
focus on student evaluations and the lack of peer opinion on teaching
ability....The original Departmental vote was so close, we may find it easier
to conclude that a different result might (We do not say must) have occurred,
and that we should return the case: here. to the departmental level"
(p.12-14).
X. Christopher Turner v. The President of the University
of British Columbia (1993).
..........Christopher Turner, who taught Russian
literature was denied promotion to full professor. In not recommending
promotion, the Departmental review document in part stated:
..........(1) Turner's main issue was that there
were a number of inaccuracies and misleading descriptions in the critiques
of his teaching, with teaching weaknesses the main reason for the negative
decision on his promotion, noting (2) "the small number of student
evaluations handed in from his undergraduate literature course (3, 8, and 6).
Turner provided the Board with the class lists in those courses, showing that
there were 4, 16, and 16 students who had registered in those courses, and
that 4, 14 and 16 had completed them. Thus the actual numbers were
proportionately much higher than the 'responses' referred to... (3) It was
argued that a low 'response' rate was proof that rather few students were
actually attending, at least on the date of the evaluation, but that is a
dangerous inference; some students simply do not fill in responses; some
students in courses with no final exam may not attend the final evaluation
lecture. (4) It would be easy for readers to infer from the [Department
Head's] figures that Dr. Turner's classes were smaller than comparable
classes in the department, a conclusion which Dr. Turner was able to rebut
with course enrolment figures. In fact, it is clear that [the dean] misread
[Department Head's] figures; in her letter of reasons to Dr. Turner...she
states 'there were few students in undergraduate literature courses since
1986/7---(3,8, and 6 respectively...', and thus has taken 'response' figures
for actual enrolment. Thus the general criticism in the Head's letter and
the Dean's later letter of reasons, about relatively small classes compared
with others in the department, was not supported in the material available
to the University. (5) This misunderstanding is in our opinion sufficient
in itself for a reconsideration, since teaching was the focus..." (p.3).
..........The board noted that (6) "While
there is no question of Dr. Turner's competence as a teacher at all levels,
teaching evaluations for the last several years show that his effectiveness
is marred by what students perceive as excessive formality, lack of enthusiasm
and dullness....In a previous promotion attempt, his teaching was briefly
described as "very competent" but student evaluations indicate
further improvement to be "better than adequate." (p.2).
(7) "while not ignoring some student unhappiness with Dr. Turner's
teaching style, we think that the comments and emphasis on the size of Dr.
Turner's classes as evidence of poor teaching are open to objection and
constitute errors of procedure and/or evidence" (p.6).
..........The board further noted that
(8) "This board has been asked on a number of occasions to
pass judgment on the relevance of student evaluations to the Agreement criteria
for good teaching. Good teaching is an elusive concept. Students may not be
good judges during a course; their judgment might be quite different several
years later in life. On the other hand, while popularity is not competence
nor effectiveness, to the extent that it encourages students it has some
relation to both" (p.7). (9) While the Agreement permits, but does not
mandate either student reviews or peer reviews, and the methods of assessment
'may vary', we do conclude that the reliance placed on these very limited
student reviews must have been great, since there was no other evaluation
referred to. Where there is no other evidence sought, student comments will
have an apparent importance and credibility that they may not deserve...
(10) We would strongly recommend peer review in the reconsideration which
we are requiring" (p.7).
..........The board concluded that (11) "there
were sufficient errors of procedure and/or evidence to return the case for
reconsideration" (p.11).
XI. University of Regina Faculty Association v. University of
Regina (1993).
..........Dr. Pradeep Jalan was an Associate
professor in the Faculty of Administration at the University of Regina. In
February 1993, during Jalan's fifth year at the University, the Faculty
Review Committee recommended that he be granted tenure. This recommendation
was not accepted by the Dean, who recommended denial of tenure on the basis
that Jalan had not met the standard for an Associate Professor in the areas
of scholarly performance and teaching.(Education Employment Law News, 1994).
Jalan appealed the Dean's recommendation to an appeals committee, which
denied the appeal. The University of Regina Faculty Association then filed a
grievance on Jalan's behalf, claiming he had been wrongfully denied tenure.
The University justified its denial of tenure on two grounds. (1) that Jalan's
teaching was unsatisfactory, submitting student evaluations completed over
the course of five years in support of this conclusion, and (2) arguing that
he had not met the standard of scholarship required for tenure, as Jalan had
only two publications, neither of which had been published in a refereed
journal; they appeared only in publications of conference proceedings.
..........The Board ruled, (3) "With respect
to teaching, it is our opinion that the evidence of unsatisfactory performance
is very weak indeed ...It is important to note that the basis of the comments,
particularly the negative ones in the fail of 1992, were written student
assessments...[and] Although these assessments are expressly recognized in
Art. 17.19 of the collective agreement, to base important career decisions
on them only does not seem justified" (p.4). The Board further ruled
(4) that tenure decisions could not be based solely on assessments which were
completed by students who had never been made aware of the ramifications of
their statements. (5) [I]f evaluations are to be used for serious career
development purposes those completing them should be aware of the potential
consequences of their participation" (p.4) The Board argued (6) that the
University was under an obligation to verify negative comments before acting
on them. Consequently, (7) the fact that Dr Jalan had received some negative
evaluations from students could not be used to undermine the otherwise
generally favorable comments he had received in his annual performance
reviews. (8) "To base serious career decisions narrowly on student
evaluations is not to be encourage...Indeed, in a document prepared by the
University... titled, 'The Assessment of Teaching Effectiveness: Guidelines
for Teaching Evaluations' it is recognized that teaching evaluations can
involve a variety of techniques. The document states that: 'These may include
direct observations, informal feedback from students (both past and present),
student course/instructor evaluations, review of instructional material
selected by the instructor, assessment of the appropriateness of textbooks,
examination of class outlines, assessment of the appropriateness of tests and
examinations set by an instructor, and grading practices.' In the case before
us, only one of these techniques was relied upon. If (9) teaching is to be
seriously evaluated for career purposes, whether for positive or negative
purposes, it seems incumbent upon Faculties not to rely only on classroom
administered evaluations but to broaden the base of assessment" (p.4)
The Board said teaching was wrongfully evaluated, but upheld denial of
tenure on grounds of inadequate scholarship. University of Regina V.
University of Regina Faculty Association And Dr. Pradeep Jalan (1993).
..........With respect to teaching, it is our
opinion that the evidence of unsatisfactory performance is very weak indeed.
It will be recalled that in the first two years of his appointment there
were negative comments with respect to Dr. Jalan's teaching. However, in
year three and four comments were quite positive. Then in the fall of 1992
again the comments were negative. It is important to note that the basis of
the comments, particularly the negative ones in the fall of 1992, were
written student assessments that were universally applied in the Faculty
of Adhinistration. Although these assessments are expressly recognized in
art. 17.19 of the collective agreement, to base important career decisions
on then only aces not seem justified. Indeed, in a document prepared by the
University dated February 15, 1991 titled, "The Assessment of Teaching
Effectiveness: Guidelines for teaching Evaluations" it is recognized
that teaching evaluations can involve a variety of techniques. The document
states that:
These may include direct observations, m formal feedback from
students (both past and present), student course/instructor evaluations,
review of instructional material selected by the instructor, assessment of
the appropriateness of textbooks, examination of class outlines, assessment
of the appropriateness of tests And examinations set by an instructor, and
grading practices (p.19).
20. In the case before us, only one of these techniques was relied upon. If
teaching is to be seriously evaluated for career purposes, whether for
positive or negative purposes, it seems incumbent upon Faculties not to rely
only on classroom administered evaluations but to broaden the base of
assessment. The University itself has recognized this in the February 15th, 1991
document. To base a serious career decision narrowly on student evaluations is
not be encouraged. That is not to say that student evaluations properly
structured and properly administered cannot be an important part of the
evaluation but, as the University has recognized, it should not be the only
factor. This R is particularly so when, as was strenuously argued by
Ms. Rasmussen for the Association, the students are not advised of the
potential use C! the evaluation tool. The point which is Very valid, is that
if the evaluations are to be used for serious career development purposes
these completing them should be aware of the potential consequences of their
participation.
..........It is our conclusion that the grievor
met the onus placed on him to establish oh that he was a competent teacher.
This onus was met through the statements made in the Annual Performance Reviews
and the evidence relied upon by the employer to suggest that the standard was
not met, in our view, was not sufficient.
XII. Cynthia J. Fisher v. Vassar College, (1995).
..........Dr. Cynthia Fisher taught in the biology
department at Vassar College. An appeal by defendant Vassar College from final
judgments of the United States District Court for the Southern District of New
York (Motley, J.). Following a bench trial, the district court found that, in
denying plaintiff tenure, defendant had discriminated against her by reason
of her sex and age.
..........An analysis of Fisher's teaching ability
included a review of her student evaluations, which (according to the report)
(1) reflected "consistent problems with clarity and her ability to
illuminate difficult material" but were otherwise generally positive; the
district court (2) found that the biology department distorted Fisher's
teaching recommendations by (3) "selectively exclud[ing] favorable
ratings", by "focus[ing] on the two courses in which Dr. Fisher had
difficulties" and (4) by "applying different standards to her than
were applied to other tenure candidates" (p.1209). Further, the district
court observed (5) that "the males tenured while Dr. Fisher was on the
faculty were praised for their teaching while Dr. Fisher was criticized for
her teaching, despite (6) the facts on which the Committee's determinations
were based (student evaluations, Biology Majors Reports and [Student Advisory
Committee] reports) revealing that Fisher's evaluations were superior to
theirs" (p.1211); the court noted that (7) statistical analyses may be
a part of a plaintiff's effort to establish discriminatory treatment. Finally,
(8) the court . . . found that the termination of Fisher's employment resulted
from a pretextual and bad faith evaluation by Vassar of her qualifications,
not from any inadequacy of her performance, qualifications, or service.
XIII. Yu Chuen Wei v. Vermont State Colleges Faculty
Federation (1995).
..........Dr. Yu Chuen Wei taught in the
Mathematics department at Castleton State College where she was denied
tenure. The case was arbitrated by the Vermont Labor Relations Board
(VLRB 261, 1995), Wei's case involved SEF as a part of a wider issue of
racial discrimination. An extensive review Wei's student evaluations were
described by the Board.
..........With regard to her student evaluations,
(1) Wei contended that the College acted unreasonably and arbitrarily by
denying her tenure on grounds of teaching effectiveness without first
performing a systematic statistical comparison of the student evaluations.
(2) She brought in an expert who had researched and written an article on
attitudes of student as a source of contamination on SEF to testify that
there were serious problems with the validity of SEF under the best of
statistical circumstances. (3) As an expert in the field of statistical
assessment of SEF, her findings indicated that SEF relative to the quality
of instruction is significantly affected by inappropriate attitudes, thereby
creating suspicion about the objectivity of undergraduate student evaluators.
(4) In specific, the expert found: (a) the race, sex or ethnic background
of the professor; (b) the grade the student expected to receive; (c) whether
the course was a required one; and (d) whether the student an undergraduate
or graduate student influenced how students evaluated professors. (5) In
analyzing Wei's evaluations, the expert compared the mean or average responses
of three years of SEF questions for Wei to the mean or average responses to
the same questions for a male colleague for the same period of time who was
the most recently tenured professor in the Mathematics Department. Both an
older and a newer evaluation form were analyzed. (6) A statistical
comparison utilized a t-test. A t-test is standard for determining whether
the difference in two means is significant, i.e., to determine whether
differences are valid or due to chance or random error. (7) The results
indicated: For (8) upper level classes using the "old" evaluation form,
Wei's mean responses were significantly higher than the male colleague's
mean responses in four out of the five questions pertaining to instructor
attributes. (9) In one category, there was no significant difference between
Wei's mean value of responses and the male colleague's mean value of responses.
For (10) lower level classes using the "old" evaluation form, in two
categories there was no significant difference between Wei's mean value
of responses and the male colleague's mean value of responses.
..........(11) In three categories, the male
colleague's mean value of responses was higher than Wei's. In (12) upper
level classes using the "new" evaluation form, Grievant's mean
value of responses was significantly higher than that of the male colleague
for three of the questions. (13) In the other two categories, there was no
significant difference between Wei's mean value of responses and the male
colleague's mean value of responses. For (14) lower level courses using the
"new" evaluation form, the male colleague's mean value of responses
was significantly higher than Wei's in two categories. (15) In the other
three categories, there were no significant difference between Wei's mean
value of responses and her male colleague's mean value of responses.
(16) Wei maintained that her students rated her the same or higher than the
male colleague's students rated him.
..........The Board disagreed (17) "that
the statistical comparison of Grievant's student evaluations with those of
[male colleague] contributes to a conclusion that the Colleges' articulated
reasons for denial of tenure and promotion constituted a pretext for
discrimination. (18) We note that the comparison offered by Grievant is
somewhat weak since [male colleague] was tenured in 1988, and those student
evaluations of his which were compared with Grievant post-dated his tenure
review by a number of years."
..........Moreover, they said, (19) "The
statistical comparison demonstrates that Grievant was evaluated higher by
students than [male colleague] with respect to upper level classes, but that
(20) [male colleague] was evaluated higher than Grievant in lower level
classes. Given (21) this "mixed" result, the statistical comparison
of evaluations does not demonstrate by a preponderance of the evidence that
Grievant's students rated her the same, or better, than [male colleague]"
(p.305). Further, the Board said, (22) "the statistical comparison is
insufficient by itself to demonstrate how students evaluated the respective
faculty members. The statistical comparison does not take account of the
comments made by students on the evaluation forms. Grievant's student
evaluations are striking in how often mention is made of Grievant's
communication difficulties, particularly language difficulties. No similar
problem, or as serious a problem, appears on [male colleague's] student
evaluations with the frequency in which Grievant's communication difficulties
are mentioned....In any event, (23) even assuming the statistical comparison
was valid, the comparison does not support the conclusion that Grievant was
treated in a discriminatory manner compared to her male colleagues." (p.304-5).
..........The board judged that (24) the tenure
criteria "are not drawn with mathematical nicety." The board further
ruled that (25) the Dean and the President, both reviewed Grievant's student
evaluations carefully. Their failure to take it a step further, and perform
a statistical comparison of Grievant's student evaluations with those of
other faculty members who have been granted tenure was not arbitrary and
was reasonable; (26) Such a comparison is nowhere required by the Contract,
and (27) we decline to hold such an involved comparison is necessary before
a reasonable tenure determination can be made; (28) The Dean and the
President obviously had much experience in reviewing student evaluations, and
could reasonably draw on that experience in each tenure review. (p.311).
..........The Board went on to say, (29) In many
other evaluations, in which students refer to communications problems in
Grievant's teaching, references to difficulty in understanding Grievant may
reasonably be interpreted as expressing a concern about her ability to
communicate" (p.305). Finally the board noted that while some students
had written that she was a "slant eyed bitch," and the she should
"go back to China," (30) "We also are not persuaded that the
racism evident in the student evaluations of Grievant made student evaluation
results unreliable. The percentage of evaluations in which racism by students
was evident was approximately one percent of the total evaluations." (p.306)
..........(31) Wei's last claim charged that the
College violated the Contract by denying her a promotion, even though both her
scholarly performance and professional activities were exceptional. Article
22(E) of the College provides for otherwise granting promotion if the
President decides that "performance in one of three areas has been
exceptional" (p.314).
..........With regard to this Article, the Board
concluded that (32) "Grievant has established no such discrimination.
Although Grievant had a significant publication record, most of it was
developed before coming to Castleton" (p.315). (33) In terms of exceptional
scholarship, Dr. Wei maintained she had solved a significant mathematical
problem (apparently published). The Board's response was, (34) "although
Grievant claimed to have solved the Erdos conjecture, Dean Mark reasonably
concluded that she had not established that she actually had solved the
conjecture. Under these circumstances, and given our consideration of the
discrimination issue previously discussed, we conclude that (35) Grievant
has not established discrimination. The Colleges reasonably, and based on
legitimate reasons, concluded that Grievant had met the tenure standards
in this performance area but that her performance was not exceptional"
(p.315). (36) The Board concluded that Wei had not established that the
tenure decision in her case was unreasonable, arbitrary or based on
erroneous reasons.
XIV. Guam Federation of Teachers v. The University of
Guam (1990).
..........At the University of Guam, a ruling
to remove anonymous student evaluations from professors' tenure files was
handed down by an arbitration board as the result of a rare challenge to the
use of such evaluations in tenure and promotion decisions (Blum, 1990). The
action was in response to a grievance filed by the university's faculty union,
the Guam Federation of Teachers, which is affiliated with the American
Federation of Teachers (AFL-CIO). The union said the use of SEF violated
the union's contract with the university, which provides that anonymous
documents or those "based on hearsay" should not be included in
a faculty member's file. The union also argued that the university improperly
interpreted the data from the evaluations.
..........Some of the issues here are
(1) students not being made aware of the purpose and ramifications of their
evaluations, (2) the anonymous nature of student evaluations, (3) the
invalid analysis of SEF, and therefore, (4) SEF in effect being anecdotal
and hearsay data. Since most SEF results are prepared anonymously, an
instructor has no recourse to confront his/her evaluators.
XV. Dr. Brian Maclean v. President of The University of
British Columbia (1991).
..........Held at Vancouver, B.C. January 28--June 20.
..........Dr. Brian MacLean was an Assistant
Professor in the Department of Anthropology and Sociology, whose first
two-year term of employment was not renewed.
..........(1) The Departmental Committee
voted 16:1 against renewal, as did the Head, the Dean's Advisory Committee,
the Dean and the President. (2) With three years of teaching experience
in Saskatchewan, and London, his scores for Anth/Soc. 100 on one of the
critical questions--- "Would you take another course from this
instructor" were very low--29%( fall) and 34% (spring), compared with
an average of 69% for all other instructors in the course. (3) They were
the lowest for all other sections of the course, and for all first and
second year courses. (4) Moreover, he had the lowest scores on another
important question--- "would you recommend this course to a friend".
(5) In his speciality course, Introduction to Criminology, his scores on the
above questions were 61.2% for the instructor, 74.6% for the course, which,
according to the Department Chair were well below other specialized courses.
(6) In his senior course, in Criminology, his ratings were 60% for the
instructor and 40% for the course [precise rankings were not provided]
(7). When MacLean was not awarded a "merit" salary increase, the Chair
told him that this was because of his low teaching ratings.
..........(8) His Department Chair testified
to the Appeals Board that this problem was discussed with Dr. MacLean and
it was strongly suggested he consult with "good" teachers in
the department. (9) The Chair stated that MacLean's response to the bad
ratings was that he did not believe them, that (10) he denied that there
was a problem, arguing that "the students were not very good students"
(p.6).
..........(11) Peer reviews of his teaching were
conducted. (12) Before the classroom visits, the two reviewing faculty members
had been informed by the Dean that Dr. MacLean had a "teaching problem"
the previous year. (13) Both faculty then attended a large lecture about 80
students. (14) Both reviewing faculty reported a favourable opinion of the
lecture, noting that Dr. MacLean's speech was clear, his "delivery"
was good, (15) despite the disadvantage that it took place in one of the more
"difficult" and unpopular lecture rooms. (16) Neither faculty
attended lectures in Dr. MacLean's other two small courses because they had
only four students in each and (17) "hence were not amendable to the usual
'lecture' style and could be easily disrupted by a visitor" (p.7).
(18) Instead, in these two courses, a class visit was made in the absence of
Dr. MacLean.
..........(19) In addition to the student questionnaires,
the reviewing faculty held in-class discussions about his teaching. (20) In
general, the in-class peer reports were mixed but favourable. The in-class
discussions were more problematic. (p.30). (21) While the knowledge, interest
and enthusiasm of Dr. MacLean was acknowledged, "the problem appeared to
be one of style or personality." (22) He was criticized for "putting
them down", for belittling their responses to his questions in class,
and that he was "hostile, aggressive, volatile, biased" (p.9). (23) It
was noted that, "The students had obviously been talking among themselves
before this class visit". (24) One of the reviewing faculty asked the Dean
if the Departmental meeting could be postponed until after grades were
submitted so that the students would feel protected. Inquiries to the President's
office found that this was acceptable. (p.9).
..........The court noted that (25) "With
respect to the "qualitative" scores---i.e. the "comments",
there was a clear error. The qualitative comments from a number of courses
were read and commented on, and conclusions were drawn from them which went
into the "file". Both Reviewing faculty read and commented on them,
as did the Department Chair in her letter to the Dean. Yet the Dean had
clearly stated in a departmental memo that the qualitative comments were not
to be used for administrative or promotion purposes. In evidence she admitted
that they were used, and indeed as we have said they formed parts of the
"file". (26) While in the abstract there is no reason why such
comments would not be relevant, if the Department had a rule against their
use, or in other words if they were "for the professor's eyes only",
then it was a significant breach of Departmental rules to use them" (p.31).
(27) In the opinion of the Board, so long as the comments were fairly
presented, they offered the PAT [Promotion and Tenure Committee] and others
a better balanced view of the teaching qualities and problems of Dr. MacLean
than the quantitative statements alone" (p.31). (28) The court noted that
"One problem with the questionnaire is that it solicits bad points as
well as good points. Despite that caveat, we conclude that the inclusion of
the qualitative comments was not a significant error." (p.32).
..........It was further noted that (29) "As
against the low figures, they disclosed a number of good qualities in Dr.
MacLean---enthusiasm for his subject, wide knowledge of the literature, much
out of class assistance to students, and a commitment to seeking good work from
students.(p.31). (30) The reviewing faculty report noted the comments about
Dr. MacLean's "derogatory manner, biased opinion, unwillingness to listen",
were matched by "clear, stimulating, very helpful after class". And,
(31) "some students have told us that the comments made were not
representative of the class as a whole and were unduly influenced by the
process" (p.41). (32) "A number of students, both from earlier years
and from his current classes, furnished letters of support, and in preparation
for the appeal, some furnished affidavits with respect to particular matters
such as the 'intimidation' discussion in Soc. 250 and events in Soc. 490 and
520 in the fall of 1989." (p.33). (34) "We agree with the appellant
that these comments are of some importance, since we agree that while a
superior research and publication record cannot overcome a poor teaching
record, it might tip the scales where the teaching record was 'on the
edge'" (p.10).
..........(35) The Faculty Agreement specified
that "Evaluation of teaching shall be based on the effectiveness rather
than the popularity of the instructor, familiarity with recent developments
in the field, preparedness, presentation, accessibility to students and
influence on the intellectual and scholarly development of students" (p.30),
(36) MacLean sought expert opinion about the validity of the student
evaluation instrument. Both MacLean and the University called expert
witnesses to testify as to the reliability and relevance of the evaluation
instrument. (37) The evidence, submitted by two experts, one for MacLean
and one for the university, was conflicting. (p.30).
..........With regard to SEF validity, the court
concluded (38) "that the instrument was not perfect, that it had flaws,
and that the very limited number of samples (because of the very limited
number of courses and students surveyed over the period) impaired its
reliability. (p.30). (39) "However, we accept the evidence of Dr. [X]
that the instrument has some value, directed toward the specified
factors. (40) The relevance and quality of the scores is a matter of weight
for the various decision-makers, and we assume that they were reasonably
aware of the limitations of student evaluations and gave them the weight
they deserve" (p.30).
..........Finally, the court said, (41) "As
we have said, there were some errors of procedure and of evidence. We have
set them out in some detail; and although they have some substance, they must
be viewed against the much larger body of evidence which was either not
questioned or was confirmed during the hearing" (p.38). "The
evidence before us led us to conclude that Dr. MacLean has worked hard,
has been active in research, and has some teaching talents of value.
(42) It is clear that he appeals to a proportion of students who find him
stimulating and helpful. (43) A number were willing to testify on his behalf
or to supply written testimonials" (p.38). (44) "Dr. MacLean's faults
appeared to be faults of style or approach...(45) Nonetheless, his colleagues
have made a judgment based upon what we have found to be an adequate
foundation of evidence" (p.38).
..........The court upheld the university.
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