Trends in tenure and promotion for unionized employers

Included in Discovery: Atlantic Education & the Law – Issue 10

By Kate Profit 

Tenure is a well known and often discussed topic amongst academics. Viewed by unions as a cornerstone of modern universities, academics rely on tenure as a procedural safeguard of academic freedom.

Tenure is considered to be a make or break decision in an academic’s life. What happens if their tenure application is rejected? Is it the end of their career? How do you find another job if denied tenure?

One criterion utilized by universities in evaluating tenure and promotion applications is student evaluations. These evaluations are designed to measure faculty performance from the student perspective. However, to unions, this raises significant concern.

The Tenure Process

Generally speaking, arbitration decisions regarding tenure and promotion are limited to procedural matters, rather than disputing the merits of the decision. When reviewing compliance with those procedures set out under the collective agreement it is clear – perfection is not required.

Academic leadership and those entrusted on review committees are best suited to make the discretionary decision to review tenure applications and make the decision to grant or deny it. An arbitrator’s jurisdiction will therefore focus on whether the process outlined by the parties in the collective agreement has been followed and whether the decision was ultimately arrived at in good faith.

Essentially, this amounts to a peer review system. Courts have found that this should not be undermined by arbitrators who are not experts in that area of academia unless material errors have occurred.

This view was confirmed in a recent decision, University of  Ontario Institute of Technology v  University of Ontario Institute of Technology Faculty Association, 2021 CanLII 138052. In this case, Arbitrator Davie set out that arbitrators must ensure procedural fairness is met, and the collective agreement has been properly interpreted and applied. From there, arbitrators should overturn the decision of a tenure or promotion committee “only where errors made are material to the result of the committee”.

Provided that procedures in the collective agreement are complied with, perfection is not required.

Are Student Evaluations Accurate Indicators?

The narrative advanced by many unions in recent times is that student evaluations are not accurate predictors of performance. Like many other areas of labour law, this problem was brought to the forefront during the COVID-19 pandemic and the rise of remote and hybrid learning.

The switch from in-person teaching to remote and hybrid models raised concerns as to how this would affect student evaluations. Do faculty need to change their teaching methods during remote learning to keep students engaged? How should these problems be navigated to ensure student evaluations are not impacted?

Unions have focused heavily on these questions. The general narrative advanced by unions is that faculty receive lower scores when classes are taught remotely and that fewer students ultimately complete student evaluations. This shift has caused unions to advance grievances alleging that student evaluations should not form part of the tenure and promotion processes due to their unreliability.

A potential pitfall of student evaluations is the criteria by which faculty are measured. What makes a good professor? While students might think that a funny or charismatic professor earns high scores on teaching evaluations, amongst the university administration and faculty, a professor who encourages critical thinking may be preferred. Several studies have also been conducted to show that not only are student evaluations inaccurate measures of teaching effectiveness, but they also show bias. These potential pitfalls are certainly something to bear in mind, however, in most cases are not lost on university administrators. It is for this reason that student evaluations form one criterion amongst many considered during tenure and promotion decisions.

The Collective Agreement

Despite pushback from unions, the reality is that student evaluations are mandatory under most collective agreements. It is a required process both in terms of administering student evaluations and in later utilizing those evaluations for tenure and promotion decisions.

Unless successfully challenged by a union through the grievance process, or unless the requirement is removed from the collective agreement through the bargaining process, student evaluations must be utilized in tenure and promotion decisions.

While Imperfect, Student Evaluations Have Merit

In Ryerson University v Ryerson  Faculty Association, 2018 CanLII 58446, Arbitrator Kaplan determined that student evaluations were poor indicators of teaching effectiveness and as such should not be considered for the purpose of tenure and promotion decisions.

In rendering his decision, he agreed with the union, classifying student evaluations as “imperfect at best and downright biased and unreliable at worst” when providing feedback in the context of tenure and promotion. However, in doing so he acknowledged that student evaluations have value in providing students with a voice about their educational experience, which both faculty and the university need to be aware of. While imperfect, they have merit.

Arbitrator Kaplan’s decision has been cited several times. Notably, in Association of Part-time Professors of the University of Ottawa v University of Ottawa,  2020 CanLII 97980, where Arbitrator O’Neil rendered a decision concerning student evaluations in the process of awarding seniority points to part-time professors and in assigning teaching work at the University of Ottawa. In this case the board addressed the process for awarding seniority points to part-time professors based on the outcome of student course evaluations. Despite noting these issues, it was determined that the collective agreement had appropriate safeguards to ensure procedural fairness such that the grievance was dismissed.

Key Takeaway

Unions have been increasingly pushing the position that student evaluations are not a reliable means by which to measure teaching effectiveness and should not be used for tenure and promotion decisions. Universities should expect the issue of student evaluations to arise during upcoming rounds of collective bargaining.

This update is intended for general information only. If you have questions about the above, please contact a member of our Education Group.

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