The UNC Policy Manual
101.3.1.2[R]
Adopted 07/01/19
Amended 07/28/23
I. The Purpose of the Review Process
under Section 604 of The Code
A. Within the University, important faculty personnel
decisions are based on evaluations of performance rendered by a candidate's
colleagues and supervisors, who are in the best position to make such
judgments. These assessments are not the product of mechanically applied
checklists, criteria, or formulas; there is no simple litmus test for
outstanding job performance. Rather,
these decisions must reflect careful exercises of discretion, in which the
faculty colleagues draw on their own academic knowledge, experience, and
perceptions to evaluate the candidate's qualifications and performance.
The academic review process seeks to obtain the collective good faith
professional academic judgment of the candidate’s colleagues and responsible
university administrators, as the basis for personnel decisions. These
decisions are entitled to great deference and weight and, as such, must be
based on considerations that are relevant to the candidate’s performance and
potential to contribute to the good of the institution. Each constituent institution shall have a procedure
whereby a tenured or tenure track faculty member may seek review of a decision
regarding non-reappointment, denial of tenure, and denial of promotion as
provided in Section 604A of The Code.
B. The purpose of reviewing Non-Reappointment, Denial of
Tenure, and Denial of Promotion decisions is to determine whether the decision
was based on an Impermissible Basis (as defined in Section 604C(1)(d) of The
Code. A review is not to second-guess professional judgments based on
permissible considerations.
C. The purpose of appellate review by the board of trustees
is to determine whether (1) the campus-based process for making the decision
was materially flawed; (2) the result reached by the chancellor was clearly
erroneous; or (3) the decision was contrary to controlling law or policy.
II. Decisions Under Section 604 of The Code
A. Basis for
Review. A decision not to reappoint, deny tenure, or deny a promotion of a
tenure or tenure track faculty member may be made for any reason that is not an
Impermissible Basis. An Impermissible Basis exists when the decision
based on any of the following: (1) the exercise by the
faculty member of rights guaranteed by the First Amendment to the United States
Constitution, or by Article I of the North Carolina Constitution; (2) the
faculty member's membership in a group protected from discrimination under
state or federal law; (3) other violation of state or federal law; or (4)
material violation of applicable university policies for reappointment,
promotion, and tenure that materially affected the decision.
B.
Role of the Faculty Committee. The
primary role of a faculty committee is to provide, through the established
campus process, the opportunity for a hearing to review the decision not to
reappoint, deny tenure, or deny a promotion. Such faculty committees provide an
opportunity for both parties to present relevant evidence and provide a
recommendation to the chancellor on the merits of the faculty member’s
contentions. The faculty committee creates a clear, permanent record of
the evidence received and makes a recommendation to the chancellor whether the
faculty member has demonstrated, by a preponderance of the evidence, that the
decision was made based on an Impermissible Basis. The faculty member has the burden of proof. The faculty committee does not have authority
to render a decision or any part of a decision.
The chancellor has the authority to render the final decision.
1. Training. Because hearings in matters of
non-reappointment, denial of tenure, and denial of promotion can present
complex and difficult questions of fact, policy, and law, and because of the
central role of the faculty committee in gathering and preserving the evidence
upon which decisions related to the matter will be based, chancellors, in consultation with campus
counsel, should ensure that faculty committee members have access to
appropriate training materials and that relevant administrators and aggrieved
faculty members have access to information regarding the hearing process.
2. Election
Procedures. The faculty council or
senate of each constituent institution should consider whether to establish
election procedures for the faculty committee so as to
extend the length of service of appropriately trained committee chairs in order
to make it more likely that each hearing has an experienced member to oversee a
faculty committee. Election procedures may permit the
establishment of a pool of trained faculty from which hearing committee members
and a chair may be drawn for each hearing.
3. Counsel. Each
constituent institution must decide whether to allow faculty members to have
the assistance of an attorney or other advisor at the hearing and, if so,
whether the advisor is permitted actively to participate in the hearing.
Constituent institutions are discouraged from allowing attorneys to participate
during the hearing. If, however, an attorney will be permitted to
participate during the hearing on behalf of the faculty member, then the campus
should provide legal counsel for the respondent administrator. Legal counsel for the respondent
administrator may be provided by in-house campus counsel, counsel from another
constituent institution, counsel from the UNC System Office, a member of the
Attorney General’s Office, or outside counsel.
C. Preservation
of Evidence. It is essential that all
testimony and other evidence received by a faculty committee be preserved for
review by the parties to the proceeding, the chancellor, and, if applicable,
the board of trustees. Both the chancellor, in making the final decision,
and the board of trustees in reviewing any appeal, must have access to a
complete record of the evidence received at the hearing. The chancellor is
responsible for determining whether the competent evidence in the record supports
the faculty committee’s recommendation. Similarly, the board of trustees,
when considering an appeal from a chancellor's decision, must be able to
determine whether the competent evidence in the record supports the
chancellor’s decision.
A
professional court reporter, or a similarly reliable means, should be used to
enable the production of a verbatim written transcript of the hearing and
properly to maintain a record of the documents received by the faculty
committee. Any such record shall be considered part of the faculty
member’s personnel file and is confidential. Access to such materials is
only allowable as provided by law.
D. The
Chancellor’s Decision. The chancellor must base their decision on a
thorough review of (1) the recorded evidence from the hearing, and (2) the
recommendation of the faculty committee. While the chancellor should give
appropriate deference to the advice of the faculty committee, the final
decision is the chancellor’s. The chancellor shall
notify the faculty member and relevant administrators
of the chancellor’s decision in writing.
In addition, the notice of the decision is to be conveyed to the faculty
member by a method which produces adequate evidence of delivery.
E. Notice of Appeal
Rights. The chancellor's notice to the faculty member of the decision
concerning the faculty member's case must inform the faculty member: (1) of the
permissible grounds for appeal; (2) that the faculty member has 14 calendar
days to file a notice of appeal through the chancellor requesting review by the
board of trustees as provided in Section 604(C)(2) of The Code; (3) that
a simple written notice of appeal with a brief statement of the basis for the
appeal is all that is required; and (4) that, thereafter, a detailed schedule
for the submission of relevant documents will be established if such notice of
appeal is received in a timely manner.
F. Time Limits for
Appeal. Requests for an appeal of the
faculty non-reappointment, denial of tenure, or denial of promotion, decisions
shall be made within 14 calendar days from the faculty member’s receipt of the
chancellor decision in accordance with Section 604(C)(2) of The Code.
III. Appeals
to the Board of Trustees (or committee of the Board of Trustees)
A. Schedule. If the board, or committee of the board,
determines that the faculty member has set forth appropriate grounds for an
appeal, the board will notify the parties of a schedule for perfecting and
processing the appeal. If the faculty
member fails to comply with the schedule established for perfecting and
processing the appeal, the board may extend the period for complying with the
schedule for good cause shown or it may dismiss the appeal. The board of
trustees will issue its decision on appeal as expeditiously as is practical.
B. Review on Appeal by the Board of
Trustees. Consistent with The Code,
deference is given to the chancellor’s decision; the board of trustees will
exercise jurisdiction under Section 604 C of The Code in a manner that assures the integrity of campus
procedures.
The
first step in any appeal to the board of trustees will be an evaluation of the
faculty member's written grounds for appeal to determine whether the issues
raised on appeal fall within the three grounds for appeal as set out in this
regulation and Section 604 of The Code.
If the appeal does not present issues that fall within the established
grounds for appeal, the board shall dismiss the appeal without further
proceedings.
The three grounds for
appeal to the board of trustees are as follows:
1. Material procedural error. A faculty member may allege on appeal that
the hearing conducted by the responsible faculty committee, or the process
followed by the chancellor included a material procedural error that, but for
the error, could have resulted in a different decision. The board may review
allegations that the faculty committee and/or the chancellor did not follow its
own procedures and such failure materially affected the credibility, reliability,
and fairness of the process. A faculty member must demonstrate that, because of
the material procedural error, he or she did not receive a fair hearing or fair
review by the chancellor such that, but for such error, a different decision
may have been reached.
2. Clearly erroneous.
A faculty member may allege on appeal that the competent evidence in the
record established that the decision not to reappoint, deny tenure, or deny
promotion, was based on an Impermissible Basis and the decision of the chancellor
was clearly erroneous. A clearly erroneous decision is one that a reasonable
person could not have reached, based on the competent evidence in the record
taken as a whole and the relevant controlling laws or policies. To
demonstrate that a decision was clearly erroneous, the faculty member must show
that a reasonable person could not have reached the conclusion that the
chancellor reached. Such an appeal constitutes a request that the board of
trustees review the entire record of evidence to determine whether a reasonable
person could have arrived at the decision in question. The issue is not
whether the board of trustees would have evaluated the evidence the same way
and reached the same conclusion as did the chancellor; rather, the question is
whether the decision reached was a reasonable one, in light
of the competent evidence.
3. Contrary to law or policy. A faculty member may allege
on appeal that, in disposing of the request for review, controlling law or
University policy was disregarded, misinterpreted, or misapplied to the facts
of the case.
During its review, the board of trustees considers whether the
campus-based process or decision had material procedural errors, was clearly
erroneous, or was contrary to controlling law or policy.
In
reviewing whether a decision was clearly erroneous, the board of trustees
considers whether the evidence introduced at the hearing and reviewed by the chancellor
is such that a reasonable fact finder could find the applicable burden of
proof, preponderance of the evidence, was met by the faculty member. When conducting its review, the board of
trustees does not reweigh the evidence, express its independent judgment on the
factual issues, determine credibility of witnesses, or otherwise conduct the
same review that would be conducted by the chancellor. Instead, the board of trustees views the
record in the light most favorable to the judgment below and decides if the
evidence in support of that decision is reasonable, credible, and of solid
value, such that a reasonable fact finder could find that the Non-Reappointment, Denial of Tenure, or
Denial of Promotion is appropriate based on a preponderance
of the evidence.
After review on appeal, the board of trustees may affirm the
chancellor’s decision; or, if the board finds that the campus-based process or
decision had material procedural errors, was clearly erroneous, or was contrary
to controlling law or policy, the board may remand the matter to the chancellor
to provide for a new hearing or a supplemental review inquiry. The remedy
available on appeal is never an award by the board of trustees of the conferral
of tenure, reappointment, a new contract, or promotion.
IV. Other
Matters
A. Effective Date. The requirements of this regulation shall be effective for any non-reappointment decision effective on or after August 1, 2023.
B. Relation
to State Laws. The foregoing regulations as adopted by the president are meant
to supplement, and do not purport to supplant or modify, those statutory
enactments which may govern or relate to faculty personnel decisions.