Tenure and Appointments

Introduction

UW System faculty members are unique among state employees by reason of eligibility for tenure, the right to participate in institutional governance, and the protection afforded by academic freedom. Although faculty members are included in the state's civil service system, the terms and conditions of their appointments are governed by a legal framework that differs significantly from that applicable to other types of unclassified UW System appointments, and to state classified civil service positions generally.

The special employment status of UW System faculty members is consistent with academic tradition, reflecting a nationwide expansion of faculty rights that occurred in the first half of the twentieth century. Tenure gained wide acceptance at that time as a means of fostering freedom in the conduct of research, the free discussion of issues in the classroom and active participation by faculty members in public affairs. The role of faculty members as active participants in the governance of the university also grew during that period. These developments are reflected in tenure systems established at universities throughout the nation.

At public institutions, including the UW System, tenure and related legal principles are often codified in statutes and administrative rules. Chapter 36 of the Wisconsin Statutes creates the UW System, as well as the legal framework for faculty tenure and faculty governance. Section 36.13, Wis. Stats., defines faculty appointments and outlines the procedures for achieving tenure. Section 36.09(3), Wis. Stats., establishes the principle of shared university governance: the faculty of each institution-subject to the responsibilities and powers of the Board of Regents, the President of the System and the Chancellor-have the right to participate actively in the development of institutional policy and have the primary responsibility for educational and personnel matters, including tenure decisions. Administrative rules adopted by the Board of Regents, and institutional policies and procedures developed at each campus and approved by the Board, further implement these statutory provisions.

In 2009, the Wisconsin State Legislature passed legislation permitting faculty members to engage in collective bargaining. The new legislation is found at Wis. Stats. §§ 111.95 et seq.

Types of Faculty Appointments

UW System faculty appointments are either probationary appointments or tenure appointments (Section 36.13, Wis. Stats.; Section UWS 3.01, Wis. Adm. Code). Both types of appointments are limited to the particular institution in which they are held, and are not system-wide in nature or effect. (Section 36.13(6), Wis. Stats.; Section UWS 3.11, Wis. Adm. Code).

A probationary faculty appointment is the appointment status held by a faculty member before a decision on tenure is made. A probationary appointment is limited to 7 years for a full-time faculty position, although this period may be extended for certain reasons, such as an approved leave of absence, a sabbatical, a teacher improvement assignment, childbirth, adoption responsibilities or circumstances beyond the control of the faculty member.

A tenure appointment is an appointment for an unlimited period of time, granted to a ranked faculty member by the Board of Regents. To be eligible for tenure, faculty members must hold an appointment of half-time or more. Except as described in the "Notestein" rule section, tenure may be granted by the Board only where it is recommended by both the appropriate academic department, or its functional equivalent, and the chancellor of the institution. Tenure cannot be acquired solely by years of service. Once granted tenure, a faculty member may be dismissed only by the Board, and only for just cause, after due notice and hearing.

Criteria for Renewal of Probationary Appointments and Tenure

The criteria by which faculty members are evaluated for the renewal of probationary appointments, including the granting of tenure, are specified in Chapter UWS 3, Wis. Adm. Code, and related institutional policies. The rules are designed to ensure that candidates are reviewed fairly, based on their qualifications. Both the renewal of a probationary appointment and the granting of tenure require that faculty members be evaluated on the basis of their teaching, research, and professional and public service and contribution to the institution, section UWS 3.06(b), Wis. Adm. Code. The relative importance of each of these criteria at a particular institution is determined by departmental, school, college and institutional policies, in light of that institution's mission and needs. These institutional criteria must be in writing and communicated to all faculty members. In addition, financial exigencies, including institutional policies on tenure density, may be legitimate criteria in the determination whether to grant tenure. Coe v. Board of Regents, 140 Wis. 2d 261 (1987).

Tenure and renewal decisions may not be based upon "impermissible factors," which are defined by the Board's rules. Under section UWS 3.08(1), Wis. Adm. Code, "impermissible factors" include:

  1. Conduct, expressions or beliefs protected by the constitution or principles of academic freedom;
  2. Factors prohibited by state and federal fair employment laws; and
  3. Improper consideration of qualifications, such as failing to consider available performance data, relying on unfounded assumptions about performance or failing to follow procedures.

The review process for renewal, including the granting of tenure, begins at the departmental level. When a faculty member is being considered for renewal, he or she must be provided an opportunity to present information to the department on his or her behalf. Under section UWS 3.06(1), Wis. Adm. Code, institutional policies must provide a faculty member at least 20 days advance written notice of a departmental review of his or her candidacy for renewal or tenure. Upon completion of the departmental review, the matter is forwarded to the succeeding administrative review levels, unless an appeal is taken.

Appeals of Nonrenewals and Tenure Denials

A faculty member who has not been renewed or has been denied tenure at the departmental or succeeding administrative review level, may appeal the decision under the procedures of sections UWS 3.07-3.08, Wis. Adm. Code, and corresponding institutional policies. Under the Wisconsin Administrative Code, a tenure denial is treated as a nonrenewal. As provided in section UWS 3.07, Wis. Adm. Code, the nonrenewed faculty member is entitled, upon timely written request, to be informed of the reasons by the department or administrative officer making the decision. The faculty member is further entitled to receive a reconsideration of the decision, which, although non-adversarial, must include an opportunity to respond to the reasons given for the decision.

When reconsideration results in the affirmation of a nonrenewal decision, the faculty member may appeal to a standing faculty appeals committee created under the authority of section UWS 3.08, Wis. Adm. Code. Appeals are limited to the question of whether the nonrenewal decision "was based in any significant degree...with material prejudice to the individual" on "impermissible factors," as defined in section UWS 3.08, and discussed above. The faculty member has the burden of proof on this issue, and so must establish that the unfavorable decision was based to a significant degree and with material prejudice on one or more of the defined impermissible factors.

The appeals committee must report on the validity of the appeal to the body or official that made the initial non-renewal decision, and the appropriate dean and chancellor. The appeals committee may sustain the original decision or may recommend alternative remedies, including additional reconsideration of the matter by the decision maker. In any event, however, the decision of the chancellor is final in such cases. (Section UWS 3.08(3), Wis. Adm. Code).

The "Notestein" Rule: Granting Tenure in the Absence of a Department Recommendation

As noted above, the general rule under section 36.13(2), Wis. Stats., is that tenure-not other probationary renewals-may be granted only by the Board of Regents, and only upon the affirmative recommendation of the appropriate chancellor and academic department or its functional equivalent. There is, however, one statutory exception to this rule, which applies in situations where a department has denied tenure.

The "Notestein" rule, named for the legislator who introduced the bill creating this exception, allows tenure to be granted without the department's recommendation where:

  1. The chancellor recommends tenure; and
  2. The standing faculty appeals committee established under section UWS 3.08(1), Wis. Adm. Code, has found that the departmental decision was based on impermissible factors; and
  3. An independent committee has reviewed the candidate and recommended tenure.

This procedure, rarely invoked, provides additional protection to tenure candidates who have met the burden of showing that the tenure denial was based on impermissible factors.

Grievances

Under section UWS 6.02, Wis. Adm. Code, the faculty of each UW System institution must designate a committee to hear faculty grievances. "Grievances" under this provision are generalized concerns about the terms and conditions of employment, as distinguished from "complaints," which are focused on the allegedly improper conduct of individual faculty members.

Complaints

Where complaints are made concerning a faculty member - tenured or probationary - whose conduct violates rules or policies, or adversely affects the faculty member's performance of duties, but is not serious enough to warrant dismissal, the procedures of section UWS 6.01, Wis. Adm. Code, and corresponding institutional policies may be followed to invoke a disciplinary action. Complaints against faculty members may be brought by anyone, including members of the public. Disciplinary action may not be taken without adequate due process, as provided in section UWS 6.01, Wis. Adm. Code, and the institution's own polices.

Dismissal

Tenured and probationary faculty members may be dismissed only by the Board of Regents and only for just cause, after notice and a hearing. Probationary faculty members may be dismissed prior to the end of the term of the probationary appointment only by the Board of Regents and only for just cause, after notice and a hearing. The procedures to be followed where dismissal for cause is sought are found in Chapter UWS 4, Wis. Adm. Code. Chapter UWS 7, Wis. Adm. Code, was promulgated in 2007 to address so-called "special cases." This chapter governs the dismissal for cause of faculty members who have pleaded guilty or no contest to, or have been convicted of, a felony involving "serious criminal misconduct."

Layoff and Termination for Financial Emergency

Chapter UWS 5, Wis. Adm. Code, establishes a procedure by which the Board of Regents may lay off or terminate faculty members in the event of a financial emergency. The process cannot be initiated unless the Board, after receiving the recommendation of the chancellor of the affected institution and the advice of a faculty consultative committee, makes a finding that a financial emergency exists.

Faculty Governance

The faculty's right to participate in the institutional governance is established under section 36.09(4), Wis. Stats. Subject to the responsibilities of the Board, the UW System president and the chancellor of the institution, the faculty is vested with the responsibility for the immediate governance of the institution and is to participate actively in institutional policy development. The statute assigns the faculty the primary responsibility for academic and educational activities and faculty personnel matters, and gives them the right to determine their own organizational structure and to select their representative to participate in institutional governance.

UW System institutional faculties have typically chosen to organize themselves in a legislative body, which develops policy through democratic processes. The details of the organizational structure are found in institution-specific policies, faculty constitutions and bylaws.

In 2009, the Wisconsin State Legislature passed legislation permitting faculty members to engage in collective bargaining. The new legislation is found at Wis. Stats. §§ 111.95 et seq.

Sick Leave Policy

Faculty sick leave benefits are determined by the Board of Regents, according to Chapter UWS 19, Wis. Adm. Code. Sick leave benefits are described in more detail in Board of Regents Policy 20-1 and the Unclassified Policy Guideline #10.

Emeritus Status and Rights

Designation of emeritus status for faculty is governed by institutional policies and procedures.