The Chronicle: Related documents: 09/13/99

STANFORD UNIVERSITY

OFFICE OF THE PRESIDENT

GERHARD CASPER

December 9, 1998

VIA FEDERAL EXPRESS

Professor Karen Sawislak
16 Chauncy Street, #34
Cambridge, Massachusetts 02138

Dear Professor Sawislak,

On April 20, 1998 you appealed Provost Rice's denial of your grievance appeal in which you challenged Dean Shoven's decision not to promote you to Associate Professor with tenure. Two days later I referred your appeal to the University's Advisory Board in accordance with University rules. The Advisory Board submitted its report and recommendations to me on November 11, 1998. As specified by our rules, I am enclosing for you a copy of that report redacted to protect confidentiality.

I am also informing you of my decision in your grievance appeal. As you will see, I am upholding your grievance on very limited grounds, because I think the circumstances of your case are unique. As an award of tenure at this time would be inappropriate given the nature of my reason, Stanford University will (subject, of course, to your concurrence) extend your appointment from September 1, 1998 to August 31, 2000. This period of appointment will not confer tenure by length of service. The Department of History will have the opportunity to resubmit your tenure case in the fall of 1999.

I agree with the unanimous view of the Advisory Board that your case does not involve any change in or violation of the University's affirmative action policies and practices or any procedural irregularity, and I otherwise find myself in substantial agreement with the Advisory Board minority on the merits of your appeal. I am deeply concerned, however, about the exceptionally incautious counseling that you received from your department.

Before I explain my concerns any further, I should like to stress what my decision is not about. My decision does not question the reasonableness, on substantive grounds, of Dean Shoven's denial of tenure. I agree with the Advisory Board minority that, seen as a whole, the balancing of multiple factors by the Dean was both appropriate and reasonable. At the University, there should be no presumption that qualitatively close cases be decided in favor of the candidate for promotion. Quite the contrary, there should be no "benefit of the doubt." Appointments and promotions should be made only to the degree that past achievements promise outstanding future achievements. As the Advisory Board minority pointed out, the tenure decision is a prediction; it is not a matter "equity," as you argue. One does not "earn" tenure. Instead, the University makes complex judgments on the basis of which lifetime appointments are granted or withheld. The future quality of the University is at stake in every appointment and promotion.

The case is also not about any change in promotion standards for women faculty. I do not believe that anyone has submitted anything remotely suggesting statistical evidence that during Dean Shoven's tenure women were treated differently from men.

Likewise, the case is not about affirmative action, and I agree with the Advisory Board's conclusion in this regard. Provost Rice has convincingly demonstrated that then-Dean Norman Wessells, in 1985, authoritatively established that the affirmative action policy of the School of Humanities and Sciences, "does not include separate standards of evaluation at the time of review for tenure." I have always understood this to be University policy, and I believe it to be fundamental. Several members of the History Department, you included, obviously entertained incorrect perceptions.

Nor is this case about departmental authority. Even a unanimous department's favorable recommendation on tenure may be overruled by the deans or the Provost or the Advisory Board or the President.

Finally, I repeat, after a detailed review of the entire record, I do not agree with the Advisory Board majority that the cumulative impact of various factors discussed by Dean Shoven in explaining his decision amounts to error. Indeed, I agree with the implicit conclusion of the Advisory Board minority that the majority's report is best seen, not as the evaluation of whether the Dean failed to consider proper factors (or considered improper factors) in reaching his decision, but rather as the majority's disagreement with the way he evaluated, assessed and weighed those factors - that is, with the judgment of the Dean on that decision. I particularly disagree with the Advisory Board majority's suggestion that, if the Dean decides to reject the recommendation of the Department and the School's Appointments and Promotions Committee, the burden of proof somehow shifts to the Dean to demonstrate that he has "compelling" reasons to do so, and that he has given "proper" weight to various factors. The University 's grievance process is not designed as an opportunity for the Provost, the Advisory Board or the President to substitute their judgment for that of the original decision-maker. As Dean Shoven testified before the Advisory Board, tenure decisions cannot be reduced to an algorithm or a formula. It is a matter of judgment and, as concerns the substance, I cannot fault his judgment, much less conclude that (to use the standard set forth in the Statement on Faculty Grievance Procedures) it was not "one which a person in the position of the decision-maker might reasonably have made."

It is therefore ironic that I grant your grievance because of an aspect of your case that was not even before Dean Shoven when he made the original decision against which you are grieving: that is, whether you were substantially misled about your progress in meeting University standards. In light of the exceptionally incautious feedback that you received from your department, you may not have taken every opportunity available to you to make more progress on your second project before your tenure review - specifically, delaying that review for one year in connection with your Newberry Library fellowship. It is on this limited basis that I uphold your grievance.

My decision in your case should not be read by anybody as suggesting that a candidate's ignorance of the principles governing University decision-making in tenure cases can lead to a successful grievance. I completely agree with the Advisory Board minority's report, from which I quote in conclusion:

"Because the larger context in which the predictive decision is is constantly changing and is, to some extent, outside the control of the candidate, there are no hard and fast criteria for tenure. The latter is an unsettling thought to untenured faculty, and can be troubling to some departmental colleagues who, out of friendship or a sense of equity with respect to others who have received tenure in the past, would prefer to frame the question in terms of whether the candidate "deserves" or has "earned" tenure. As much as we might like to, we cannot provide junior faculty with a checklist that, if all the items are ticked off at the end of six years, will guarantee them tenure. To reduce the tenure decision to a checklist would tend over time to shift standards downward, because in all the close cases the tenure question would then become "Is the candidate's record no weaker than that of anyone we've tenured in the recent past?" Given that a positive tenure decision is, in effect, granting the privilege of a lifetime job, it seems reasonable that expectations should be higher than this. Instead, by retaining the predictive nature of the tenure decision we are able to improve the quality of lagging departments, ensure the future of currently excellent departments with demographics that show them to be at risk, and react nimbly to disciplinary and technological breakthroughs. We believe that it was just such a predictive decision that the Deans made in this case."

Thus, although I agree with the recommendation of the Advisory Board majority that your grievance be upheld, I do so for a very different reason. Please call Senior Associate Provost Kathryn Gillam (at 650/723-3622) to discuss the details of the proposed appointment.

Sincerely,

Gerhard Casper

Enclosure

cc/enclosure:

Professor Gail A. Mahood
Advisory Board Acting Chair

Professor Malcolm Beasley, Dean
School of Humanities and Sciences

Professor Carolyn Lougee, Chair
Department of History

Professor John Shoven

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