California Faculty Assn. v. Superior Court

• Decision Date: 06 May 1998
• Docket Number: No. H017254,H017254
• Citation: 63 Cal.App.4th 935,75 Cal.Rptr.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: , 159 L.R.R.M. (BNA) 2097, 125 Ed. Law Rep. 749, 98 Cal. Daily Op. Serv. 3475, 98 Daily Journal D.A.R. 4731 CALIFORNIA FACULTY ASSOCIATION, Petitioner, v. The SUPERIOR COURT for the County of Santa Clara, Respondent; Board of Trustees of the California State University, Real Parties in Interest.

Page 1

75 Cal.Rptr.2d 1

63 Cal.App.4th 935, 159 L.R.R.M. (BNA) 2097,

125 Ed. Law Rep. 749, 98 Cal. Daily Op. Serv. 3475,

98 Daily Journal D.A.R. 4731

CALIFORNIA FACULTY ASSOCIATION, Petitioner, v. The SUPERIOR COURT for the County of Santa Clara, Respondent Board of Trustees of the California State University, Real Parties in Interest.

No. H017254.

Court of Appeal, Sixth District, California.

May 6, 1998.

Review Denied July 22, 1998.

Rothner, Segall, Bahan & Greenstone California Faculty Association, Glenn Rothner and Susan P. Ortmeyer, Pasadena, for Petitioner.

Christine Helwick, Oakland, James R. Lynch and Donald A. Newman, Long Beach, for Real Party in Interest Board of Trustees of the California State University.

BAMATTRE-MANOUKIAN, Associate Justice.

This case arises from a decision by the president of San Jose State University denying tenure and promotion to a probationary faculty member. The matter was submitted to arbitration pursuant to the grievance procedure set forth in the collective bargaining agreement between the employer, the trustees of the California State University (hereafter "CSU"), and the (California Faculty Association (hereafter "CFA"), which represented the aggrieved faculty member). The arbitrator overturned the president's decision and directed that the university grant tenure to the faculty member and promote her to the rank of associate professor. CSU then filed a motion in superior court to vacate the arbitration award.

The superior court granted the motion to vacate, pursuant to Code of Civil Procedure section 1286.2, subdivision (d), on the ground that the arbitrator had exceeded the authority given him under the terms of the collective bargaining agreement and the parties' stipulated submission. The court ordered that the matter be remanded for a new hearing before a different arbitrator. CFA now petitions We will deny the writ petition and affirm the trial court's order.

this court for a writ of mandate directing the superior court to vacate its order and to confirm the arbitration award.

BACKGROUND

In 1988, M. Rivka Polatnick (hereafter "the grievant") was hired at San Jose State University (hereafter "the University") as an assistant professor in the Social Science Department. She was a probationary faculty employee, subject to periodic performance reviews for the purpose of retention. The normal probationary period was six years, after which time she would be considered and evaluated for tenure and promotion. A denial of tenure at the end of the six-year period would mean that she had no further reemployment rights. A grant of tenure would normally be accompanied by promotion to associate professor and would mean that she had the right to continued permanent employment at the University.

The grievant's letter of appointment in 1988 informed her generally of what was expected of her during her probationary period at the University: "The Social Science Department expect faculty members to demonstrate growth and accomplishment in academic, professional and scholarly activities reflected by student and collegial teaching evaluations, the presentation of conference papers, the preparation of manuscripts for publication and other research-related activities. These expectations supplement the more general statement of criteria and standards contained in the University and School of Social Sciences policies on appointment, tenure, retention and promotion."

The University's criteria and standards were developed by the Academic Senate and are contained in a University policy document entitled "Appointment, Retention, Tenure, and Promotion Criteria, Standards, and Procedures for Regular Faculty Employees" (hereafter "ARTP Policy"). This document provides that "[e]xcellence in education is dependent above all upon the quality of the faculty. The purpose of these procedures for recruitment, retention, tenure and promotion is to provide just recognition and encouragement of genuine achievement. The basic evaluation of faculty members' potential, performance and achievement should be made by their peers both within their department and their disciplines at large."

The University ARTP Policy sets forth the two "basic criteria" for evaluating a probationary faculty member: "effectiveness in academic assignment and scholarly or artistic or professional achievement." Scholarly achievement refers in general to "work based on research and entailing theory, analysis, interpretation, explanation or demonstration," and includes "books, articles, reviews, technical reports, computer software ... or papers read to scholarly associations." The ARTP Policy further describes the guidelines for evaluating a faculty member's scholarly achievements: Such achievements "should be thoroughly evaluated by one's disciplinary peers, within and/or outside one's department, not merely enumerated. Acceptance of scholarly or artistic work by an editorial or review board (or jury) constitutes an evaluation of that work. Work in progress and unpublished work should be assessed whenever possible. When appropriate, professional contributions should be evaluated by professional persons in a position to assess the quality and significance of the contributions. Ordinarily the number or length of publications per se shall not be a criterion for tenure or promotion."

The ARTP Policy stresses that the decision regarding tenure is "perhaps the most important decision the university must make with respect to its faculty since, in effect, it represents a commitment on the part of the university which may entail three or four decades of service on the part of the faculty members. The granting of tenure is not solely a reward for services performed during the probationary years, but is an expression of confidence that a faculty member will continue to be a valued colleague, a good teacher and an active scholar, artist or leader in his or her profession. Accordingly, tenure decisions should be based upon thorough review of faculty members during their probationary years.... Tenure should be granted only to individuals whose record of teaching The University ARTP Policy also sets forth the requirements for promotion to associate professor, which is the second highest academic rank. "The rank of associate professor presupposes that a faculty member has considerable academic or professional experience and accomplishments during the probationary period.... In addition [to academic effectiveness], there should be evidence that scholarly or artistic or professional activity is a continuing part of a faculty member's professional life.... [P]romotion to associate professor ... require[s] demonstrable achievement or contribution to the candidate's discipline or professional community. Professional contributions should demonstrate the development of a candidate's potential for leadership in his or her professional community, or other valuable contributions to the profession. Similarly, a candidate's scholarly or artistic achievements should exhibit qualities of intellectual, artistic or professional competence and the promise of continuing development and growth on the part of the faculty member."

                and contributions to their professional communities indicates the potential to earn promotion to the ranks of associate and full professor."   Because of its importance, "an award of tenure requires more than potential or promise."   It requires that the candidate have made professional contributions to the particular discipline, evidencing "both the commitment to and the potential for continued development and accomplishment throughout the candidate's career."
                

The University president has the ultimate authority to make tenure and promotion decisions. Such decisions, however, must be based upon information and documentation contained in the faculty member's personnel file, including recommendations from three separate retention and tenure committees--a department-level committee consisting of six tenured faculty, a college-level committee consisting of a representative from each of nine departments, and a university-level committee consisting of a representative from each of nine colleges--as well as from the dean of the college and the associate academic vice president for faculty affairs. Only tenured full-time faculty and academic administrators may engage in deliberations and make recommendations to the president regarding the evaluation of a probationary faculty member. Each participant in this peer review process "must be thoroughly trained in the use of the present university policy on Appointment, Retention, Tenure, and Promotion Criteria, Standards, and Procedures for Regular Faculty Employees. Department chairs, college deans, and the Associate Academic Vice President for Faculty Affairs shall arrange for appropriate training in the application of this policy." At all levels of review, the probationary faculty member is to be given a copy of the recommendations and may submit a rebuttal or response and/or request a meeting to discuss the recommendation.

Pursuant to ARTP Policy standards and procedures, the grievant in this case was evaluated for retention during every year of her six-year probationary period, with the exception of one year. During the academic year 1994-1995, she was evaluated for tenure and promotion. The evaluation process produced 721 pages of materials, which comprised her dossier, or personnel file. Her reviewers were divided on their recommendations. With respect to the evaluations for tenure, the vice president, seven members of the university committee, two members of the college committee and five members of the department committee recommended granting tenure. Two members of the university committee, five members of the college committee, one member of the department committee and the dean voted against granting tenure. With respect to promotion, the votes were similar except...