B is for Burden of Proof

The Faculty Advancement Committee can simulate fidelity to the code under almost any conditions.


“A is for Accounting” revealed some actualities of how some colleagues fail of tenure. Perhaps as enlightening is how colleagues who do not merit tenure – the “False Positives” I have discussed above – are awarded tenure nonetheless. False negatives and false positives slip through because the burdens of proof on the Faculty Advancement Committee [FAC] are far from onerous.

Let us start with what should have been obvious in the immediately previous post: for all the arbitrary decisions and specious justifications flowing about campus, the Faculty Code’s standards and criteria relate strongly to decisions. That is, the code places the burden of proof on an evaluee to make her or his case. Schools, programs, or departments [hereafter abbreviated as “departments”] may help or hinder the effort to get tenure as well. If evidence regarding teaching and/or professional growth is insufficient, the code directs that tenure should not awarded. If conflicts with colleagues can be claimed to impair teaching or professional growth, then evaluators have their way of the evaluee. Burdens on evaluees and departments are so heavy that subsequent evaluators' burdens are light.

Let us see in some detail how the actuall allocation of the burden of proof licenses great discretion by the FAC.

If the FAC claims to espy some negatives in students’ evaluations that no one in the department saw [or will, on further review, see], the evaluee and the department are unarmed against claims that the necessary evidence or explanation is absent [the “A” claims in the immediately previous posting]. Each will sit before the Committee poleaxed when the Committee conjures a novel, sometimes fanciful reading of the file. How were they to have headed off an interpretation or a fabrication that they could not or did not anticipate? The question is rhetorical. The burden is on them, not the Committee.

The FAC will have its way with the evaluee and/or the department because neither will have met the burden of proof that they could not or did not see. The Committee will intone gravely that the burden of proof is on the evaluee or department [see the “B” claims in the immediately previous posting]. The Faculty Code says so for all to see! Thus does patent language mask latent subjectivity. By the time that the evaluee and his or her department learn what the Committee is up to, it is too late to remedy the file.

In a similar manner, conflicts [“C” factors in the immediately previous posting] furnish an occasion for the FAC to transcend squabbling and tantrums or to accede to the harsh reality that it is easier to fire one evaluee than multiple departmental malefactors, especially if scalawags are tenured. Whatever the Committee elects to do, the code will likely rationalize the result because the FAC effectively creates much of the file that the President and trustees will see.

For the foregoing reasons, FAC recommendations and rationalizations will almost always successfully allude to the Faculty Code. The Committee will take far greater care to appear to adhere to the code when the Committee is ranging furthest from the code’s letter or spirit. When favoring an evaluee by finding excellent professional growth where many colleagues would have difficulty finding any professional growth or by certifying excellent teaching when pedagogy has been desultory, the Committee will be crafty and clever in ways unnecessary when an evaluation is routine. When a negative recommendation is a close call, the Committee will be even cagier but will have to bamboozle the President and the trustees, not the department or the evaluee far more familiar with the file in detail.

If members of the FAC break through groupthink to compose minority reports, expect such reports to be buried. I presume that minority reports have usually reached the President. I do not know if they have routinely reached the trustees. In at least one instance, an FAC minority report did not reach a hearing board until that hearing board accidentally discovered the report.

In sum, even when the FAC does not manifestly violate the code, the Committee need not have adhered to the code. The Committee enjoys such useful presumptions and deference that there are few practical limits to the loads that it can forklift.


Next: “C is for Cooneying” – The Bush Administration’s bowdlerizing of scientific reports provides colleagues a useful verb.