is it getting risky for State U to deny tenure?
James Dinnan represents a new breed of conscientious objector on college campuses. Recently released from a three-month sentence in federal prison for contempt of court, he is not exactly the stereotype of a Vietnam-era draft resister but rather a middle-aged, tenured faculty member.
Professor Dinnan was arrested in his academic robes at the Univerxity of Georgia in July after refusing to reveal how he had voted as a member of a peer-review committee that denied tenure to a woman faculty member who had sought promotion. The woman, Maija Blaubergs, filed a $10 million sex-discrimination suit against the university.
Peer review comes from a tradition of academic self-governance whereby faculty members participate in the hirng and granting of tenure to their colleagues. Dinnan, who is to return to court Nov. 3 for an appeal of his contempt order, maintains that the right to a secret ballot has been perceived as untouchable in the United States. "When it gets violated," he says, "it's interesting as heck."
His stance points up the widening battle between the federal government and some of the nation's major universities over enforcement of affirmative action laws. What is at stake, say observers, is not a clear case of right and wrong but of competing rights.
The basis of the dispute is a 1972 congressional decision to extend Title VII of the 1964 Civil Rights Act ot include colleges and universities. Title VII forbids employment discrimination on the basis of race, sex, or religion. The matter is compounded by the fact that it usually takes at least six years of service before a tenure decision -- called "up or out" in academic circles -- is made on a teacher.
Says Clare Guthrie, assistant general counsel in the government relations office of the American Council on Education: "It is only recently that significant numbers of women and minority faculty members are eligible for tenure. It has taken them six to seven years in the faculty pipeline."
With these increased numbers of women and persons from minority groups, however, have come increased claims of discrimination. The number of such challenges, she says, may in large part be determined by another case, involving the University of California at Berkeley.
That case "will be important in establishing precedents throughout the nation ," Ms. Guthrie thinks.
Recently, the US Department of Labor brought to a head a two-year dispute with the Berkeley campus over affirmative action policies and the hiring of women and minority group members. Labor Secretary Ray Marshall issued an order that threatened to deny the school $25 million in federal contracts (and conceivably could have threatened another $50 million in grants and student aid) unless certain confidential peer-review records were turned over as evidence.
The government saw its ability to administer affirmative action laws impaired by lack of access to the records, which it deemed necessary in judging whether discrimination had occurred.
The university, in turn, saw its collegial peer-review process jeopardized if it were forced to turn over documents it had solicited with the understanding that they would be held in confidence.
Future hiring, the school maintained, would be severely restricted because needed opinions and evaluations would not be as frank if open to public scrutiny.
The impasse was resolved with the signing of a last-minute consent decree between the university and the Labor Department that will allow federal authorities to borrow classified materials but will permit the school to protect their confidentiality.
Dr. John Blasi, academic vice-president of Onandaga Community College in Syracuse, N.Y., and consultant to the Middle States Accreditation Association, believes the faculty review process would be radically altered if confidentiality could not be guaranteed.
"An informed subjective judgment is made by colleagues in the peer-review process," Dr. Blasi argues. "If individuals fear they may become subject to suit because something they said in confidence can be held against them by a faculty member who has been rejected for a position, they won't want to divulge any information."