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Educational policy analysis archives
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Educational policy analysis archives.
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University of South Florida.
c November 25, 1997
Academic freedom, promotion, reappointment, tenure and the administrative use of student evaluation of faculty (SEF) : part 4 : analysis and implications of views from the court in relation to academic freedom, standards, and quality instruction / Robert E. Haskell.
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1 of 44 Education Policy Analysis Archives Volume 5 Number 21November 25, 1997ISSN 1068-2341A peer-reviewed scholarly electronic journal. Editor: Gene V Glass Glass@ASU.EDU. College of Education Arizona State University,Tempe AZ 85287-2411 Copyright 1997, the EDUCATION POLICY ANALYSIS ARCHIVES. Permission is hereby granted to copy any article provided that EDUCATION POLICY ANALYSIS ARCHIVES is credited and copies are not sold.Academic Freedom, Promotion, Reappointment, Tenure And The Administrative Use of Student Evaluation of Faculty (SEF): (Part IV) Analysis and Implications of Views From the Court i n Relation to Academic Freedom, Standards, and Quality Instructio n Robert E. Haskell 1 University of New EnglandThis is the last of four articles by Haskell on thi s subject. The other articles can be found at Volume 5 Number 6 Volume 5 Number 17 Volume 5 Number 18 Abstract: In three previous papers, it was noted that whil e a controversial history of research on the reliabilit y and validity of student evaluation of faculty (SEF) exists, it has not been typically viewed as an infringement on academic freedom. As a consequence legal aspects of SEF are neither readily apparent, nor available. M oreover, SEF has not been generally seen as an infringement on, and detr iment to, academic standards and quality instruction. The article is a review of SEF legal rulings analyzed in terms of their implications for academic freedom and


2 of 44 quality of instruction in higher education.Table of Contents Overview of Academic Freedom Methods of Instruction, Grading, and Academic Freedom The Faculty Right to Select Teaching Methods The Faculty Right to Assign Grades The Courts, the University, the Faculty, and Setting Academic Standards Who Is the University That Sets Academic Standards? SEF and Administrative Pressure to Maintain Enrollment Not Academic Standards Academic Freedom and Assumptions Underlying Student Rights to SEF Assumption # 1: Student as Consumer and the University as Business Assumption # 2: Higher Education as a Democracy Assumption # 3: Students as Qualified Evaluators Assumption # 4: Student Learning as the Responsibility of the Faculty SEF and Conflict of Interest in Relation to Student-Instructor Interface Curricula and Conflict of Interest Economic Conflict of Interest Release of SEF To Students and To the Public SEF In a Larger Context The Global Exporting of SEF Legal and Administrative Default-Enforcement of Faculty Allegiance Conclusion References ..........As indicated in previous papers (Haskell, 1997a, 1997b, 1997c), the history of legal rights demonstrates that issues not considered to have leg al standing only come to have legal standing after a long process of advocacy, requiring the accumulat ion of data, coalescing judgements and arguments surrounding an issue. This series of pap ers on SEF is in the service of that process. ..........In the first article (Haskell, 1997a), I suggested that despite a history of conflicting res earch and views on the reliability and validity of studen t evaluation of faculty (SEF) used administratively it has not been considered an infringement on acade mic freedom, and that to question the use of SEF is often seen as an attack on either student rights 2 or on evaluation of faculty performance in general. 3 Faculty and educational administrator views and s urveys, along with other data, were reviewed as SEF is used in salary, promotion and te nure decisions. I proposed that the literature showed that SEF infringes on instructional responsi bilities of faculty by providing a control mechanism over curriculum, course content, grading, standards, and teaching methodology. 4 I further proposed that SEF plays a significant role in current attacks on tenure, and that its role in a demographically diverse 21st century educational system has changed from its be nign historical origins, concluding that contrary to current views SEF is a serious and virtually unrecognized infringement on academic freedom...........In a second article (Haskell, 1997b), I s uggested that as a consequence of SEF not being viewed as infringing on academic freedom, its legal aspects have been neither readily apparent, nor available. Accordingly, as a legal category SEF ha s been virtually absent in compendia on higher education law. Legal rulings were abstracted and c ategorized from located SEF cases. In a third article (Haskell, 1977c), these legal rulings, thei r implications and assumptions in relation to their accuracy and psychometric validity, where SEF is in tegral to the denial of academic freedom, tenure, promotion, and reappointment, were reviewed along w ith the legal principles of Disparate


3 of 44Treatment, Disparate Impact, and the scientific Pre cautionary Principle in policy decision making. ..........This final paper will continue to examine legal rulings on SEF cases involving the denial of tenure, promotion, and reappointment decisions in r elation to its implications and assumptions regarding academic freedom and quality of instructi on. Finally, I would like to point out that the issues examined in this series of papers are not pr imarily concerned with individual faculty rights but with the implications of SEF when used for admi nistrative purposes on academic freedom, educational quality, standards, and ultimately on t he competence of graduates. 5 Overview of Academic Freedom..........Few higher educational issues are more im portant, controversial and ambiguous than the issue of academic freedom. Among many faculty and admini strators, the concept of academic freedom, like the public's view of the First Amendment right to free speech, takes on a near carte blanche quality. It is therefore widely misunderstood. 6 Some restrictions on faculty speech in the classr oom are, of course recognized. Just as it is generally understood that the public's right to free speech does not extend to the well-known limitation of loudly s houting "fire" in a crowded movie theater, so too faculty generally understand that academic freedom does not extend to classroom political commentary not directly related to the subject matt er of their course. One related issue which apparently elicits more controversy than the concep t of academic freedom itself is SEF. When I initially argued (Haskell, 1997a) that the administ rative use of SEF is an abridgement of faculty's academic freedom, one critic (Theall, 1997) quickly objected, asserting that "Academic freedom has been defined in many ways, but never before in a wa y that suggests the construct (tradition? principle? tenet?) is vulnerable to the influence o f student ratings." He was, of course, nearly corr ect (also see Haskell, 1977d)...........In my initial paper, it was noted that SE F had neither legally, nor by published title, been identified as an infringement on academic freedom. 7 I was recently informed by a Canadian colleague, however, that there exists at least one early reference to SEF being an abridgement on academic freedom. This reference is a book chapter by Christopher K. Knapper (1977) entitled, "Teaching Evaluation and Academic Freedom." He open s his chapter, noting:A number of previous chapters have talked about fac ulty resistance to teaching evaluation, and have hinted that the freedom of the individual professor to decide the content of his course and how it is to be taught may be infringed upon by the widespread use of formal evaluation procedures Some enthusiasts for student evaluation of instr uction ignore this aspect of the question completely, others consider it in passing as a factor which must be taken into consideration in setting up evaluation programs. Hardly any writers have tackled the issue head-on, to discuss the various ways in which acade mic freedom might be infringed (p.198, italics added).Academic freedom has many ambiguous facets; indeed, its core meaning may be dwarfed by its fuzzy outer periphery...........There is no shortage of past and current analyses of academic freedom (e.g., Academe 1997; Dewey 1976 [1902]; Furedy, 1995; Lovejoy 1937; Mena nd 1993, 1996; Morrow and Sills 1968; Stichler, 1997). In a recent volume by Menand (199 6), the closest and only allusion to SEF infringing on faculty behavior is found in Chapter Four. In discussing the formal and informal regulation of speech (i.e., certain viewpoints) Sun stein notes, "the evaluation of students and colleagues cannot occur without resort to [course] content, and it would be most surprising if viewpoint discrimination did not affect many evalua tions" (p.106). Viewpoint discrimination will be examined below...........In 1973, the Commission on Academic Tenur e in Higher Education (jointly sponsored by the


4 of 44AAUP and the AAC) made the following slightly more concrete recommendation relative to teaching incompetence: The commission believes tha t "adequate cause" in faculty dismissal proceedings should be restricted to (a) demonstrated incompetence and dishonesty in teaching and research (University of Michigan, 1994). [italics a dded]. The AAUP's Statement on Teaching Evaluation further suggests that "Casual procedures a paucity of data, and unilateral judgments by department chairs and deans too often characterize the evaluation of teaching in American colleges and universities....A judicious evaluation of a col lege professor as teacher should include: (1) an accurate factual description of what an individual does as teacher" (AAUP Commi ttee C 1975). [italics added] 8 The phrases, demonstrated incompetence by an accurate factual description of what an individual does as teacher," have been cent ral in the analysis of court rulings in this series of articles...........Further, most definitions, analyses and d iscussions of academic freedom are general and abstract. In addition to general statements about academic freedom including the freedom to teach, it is unclear what freedom to teach concretely mean s, with the exception that faculty are entitled to freedom of discussion and inquiry in their classroo ms as long as they do not introduce controversial matter which has no relation to their subject. Eve n with this, what constitutes "controversial" and "no relation" is ambiguous in itself. This lack of concreteness in analyzing academic freedom is perhaps one reason why SEF has not been recognized as an abridgement of academic freedom. As this series of articles has demonstrated, SEF provi des a concrete view of academic freedom from the teaching trenches, a view that reveals unrecognized infringements on academic freedom. A wider review of the concept of academic freedom is beyond the scope of this article. 9 Thus, except as it is concretely defined in this last of the series of ar ticles on SEF, academic freedom must function as a "primitive" term. 10 Methods of Instruction, Grading, and Academic Freed om..........Most faculty (including myself until rece ntly) seem to believe that academic freedom pertain s not only to free speech in the classroom, but also to teaching methodology, grading, and assigning course work. Full-time teaching faculty traditiona lly have been and continue to be, by virtue of thei r disciplinary knowledge and daily classroom experien ce, the primary group that is fundamentally situated for defining standards in higher education Indeed, it has reached near origin-myth proportions among faculty that the university is th e faculty, and publically, administrators typically lip-sync this view. How have courts in relation to SEF cases in fact ruled on such thought-to-be time-honored prerogatives of the faculty---individu ally or collectively? And what are the implications for SEF, academic freedom, educational standards, and quality of instruction? .The Faculty Right to Select Teaching Methods 11 ..........According to the SEF cases analyzed in Ha skell (1997b, 1997c), courts have ruled:Summary: Teaching method (72) is not a form of free speech, nor (73) covered under academic freedom, (74) except if noted in specific contractu al faculty agreements. Numerous courts, (72) have separated faculty speech from action in the classroom, (2) have maintained that faculty can not disregard institutionally established curriculu m content in the classroom; that the first amendment does not prevent a university from termin ating an untenured faculty whose "pedagogical style and philosophy" does not conform to that of "the school's administration", (1) have further ruled that it is acceptable for untenu red faculty to be terminated because of a refusal


5 of 44to lower their academic standards, (22) that a deci sion not to retain a non tenured instructor, even though based, in part, upon SEF that express disapp roval of the faculty teaching methods does not violate a faculty's First Amendment right to academ ic freedom. 12 Thus, perhaps one of the most widely misunderstood aspects of academic freedom is the faculty right to decide their teaching methods, i.e., what faculty do in the classroom not what faculty say The Supreme Court has stated: "Any inhibition of f reedom of thought, and of action upon thought in the case of teachers brings the safeguards of th ose amendments [First and Fourteenth] vividly into operation" (Shelton v. Tucker, 1960, italics added) The term "action" could be construed as relating to teaching method...........In Carley v. Arizona Board of Regents (1987), the faculty member contended that teaching methodology was part of his academic freedom right (see endnote # 9). The court clearly said it was not, citing numerous other cases and legal principl es to support their denial. Carley cited several rulings in support of his position, but the court d isagreed with them, saying that the cases he cited involved conduct more closely resembling speech tha n teaching method. For example, in State Board for Community Colleges and Occupational Educa tion v. Olson (1984), the court stated that the "principle [of academic freedom] finds its sour ce in the belief that teachers should be free to engage in the exchange of diverse ideas on controversial topics..." (p. 437, italics added ). This case involved the cancellation of a student newspaper th at was part of a class. The court found that canceling the student newspaper did not "abridge th e constitutionally protected aspect of [her] teaching function," as Olson was still free to util ize other instructional methods for "presentation o f the idea-content of her journalism courses..." (p.1 101). In this context, teaching method was not protected as is speech. 13 ..........The court also cited Clark v. Holmes 9474 F.2d at p. 931(1972), where the court upheld the nonrenewal of a non tenured instructor for reasons related to the structure of his course content. Th e court stated "We do not conceive academic freedom t o be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioni ng of the institution" italics added). The court rejecte d the claim, based on the same distinction articula ted in Lovelace involving homework assignments, course standards, and the distinction between speech on the one hand and teaching methods on the other. In Lovelace v. Southeastern Massachusetts University (see #9), the court ruled that Lovelace's nonrenew al was because of what he did not what he said Specifically, according to the court, student co mplaints about his grading policy had nothing to do with his speech. As the court noted, Matters related to grading policies, course content and homework load are policy matters for th e university (italics added). Exactly who constitutes the university will be addressed below. Similarly, the court ruled that Carley's complain t did not involve speech...........In the Carley case, the court also cited Hetrick v. Martin (1973), in which a state university declined to renew the appointment of a non tenured faculty member due to disapproval of her pedagogical attitude (italics added), as evidenced by teaching styles and techniques. The court expressly refused to recognize teaching methods as protected speech, holding: Whatever may be the ultimate scope of the amorphous 'academic freedom' guarantee to our nation's teachers and does not encompass the right of a non tenured teacher to have her teaching style insulated from review." The court finally cited oth er cases which ruled that teaching methods do not generally fall under the rubric of academic freedom 14 Indeed faculty challenges to institutional denial of tenure decisions for reasons relating to instructional methods, course content, and grading policies have generally been unsuccessful...........According to Copeland and Murry (1996), t he courts have repeatedly ruled that colleges and universities have broad control over course content homework, and grading policies, and over pedagogical methods. Another legal writer conclude s (Weeks, 1988), "that challenges to the use of student evaluations based on a claim to academic fr eedom will not be sustained as long as those


6 of 44evaluations focus on teaching method, classroom pre sentation, and general teaching skills" (p. 6). When on the basis of student complaints about (reas onable) teaching methods and institutions' denial of tenure on the basis of those student comp laints, and when the courts deny that teaching methods are protected by academic freedom, there ex ist a number of serious problems, educational problems that have not been adequately addressed...........The historical distinction in educational cases between speech on the one hand and action or methods on the other hand appears to engender at least one basic false assumption, and a host of pedagogical implications, including implications fo r academic freedom. One false assumption is this: That course content and teaching method are o ften two inherently distinct areas. The distinction between speech and action or content, h owever, is analogous to that of content versus form discussion in the humanities and elsewhere (e.g., in art, literary criticism, philosophy). It is generally accepted that in many situations that con tent and form can not be clearly separated. ..........Occasionally, the courts appear to recogn ize this false dichotomy. For example, in the Carl ey case, the court cited Kingsville Independent School District v. Cooper (1980), wherein the court reviewed a history teacher's presentation of post-C ivil War Reconstruction using a role-playing technique which evoked strong student feelings on r acial issues. The school board declined to renew her teaching contract because there had been complaints by parents about her instructional method. The court noted that like Olson, the case involved the discussion of controversial topics and the presentation of controversial course materi als. Unlike in Olsen, however, the court defined teaching methods as speech and found that the speec h was protected and could not be used as a basis for non renewal of the teacher's contract. However in the Carley case, the court found that in his commercial art course the requiring of business val ues, e.g., of being prompt, self-reliant along with his method of instruction being demanding was not a cademically protected. Other than the fact that these rulings came from two different courts, the d istinction between these two cases appears to be one without an instructionally pragmatic difference. In the Kingsville case, for example, the school prohibiting role-playing as a teaching method was f ound to be a violation of speech. In point of fact then, the court in effect did rule in favor of teaching method. It is diffi cult to understand why this method was protected under free speech since the sa me historical content could be taught without using role-playing as a teaching method...........It is unclear what the difference is betw een the Kingsville case involving role playing, and the Olson case, in which the court found that canceling the student newspaper did not abridge the constitutionally protected aspect of [her] teaching function because Olson was still free to utilize other instructional means for "presentation of the idea-content of her journalism courses..." (p.1101)? So, too, could the teacher in the Kingsvi lle case utilize other instructional means for presentation of the idea-content of her history cou rse. Given the goals of instruction, it is not eas y to see how Carley could have used other instructional means to deliver what he saw as the appropriate (business) content of his course. As I noted in Ha skell (1997c), clearly the courts' logic in such cases becomesunwieldy, not just to the nonlegal scholar, but app arently to the Courts as well....To the layman, legal rulings regarding SEF are a veritable thicket often seeming that the use of context to differentiate one apparently similar case from anot her functions as a kind of ad hoc carte blanche to justify preconceptions and positions...........Finally, at least in certain realms adjud ged by the U.S. Supreme Court, the distinction betw een speech and action is often considered a distinction without a difference. For example, in 1989 the court ruled that flag desecration (flag burning) co uld be a form of political expression and, as such, would be protected under the First Amendment, which specifically prohibits Congress and the states from making any laws to abridge such freedom of spe ech/action. Granted, flag burning is judged under a more stringent legal interpretation of free speech because it is considered to be in the political arena, and therefore more important than other sit uations, hence the denial of the


7 of 44distinction between speech and action. But what is more important than the means (action) by which we educate student minds?..........Three pedagogical examples may help clari fy the fusion of course content with instructional methods : It is generally accepted in the small group dynam ics literature that if the goal is teaching students to function in small group conditions (as opposed to simply learning about small groups), that one of the most effective methods (if not the most effective method) is having stude nts actually function as a group (often known as an experiential method, where students learn by experiencing the group processes). What if students complained about this method? Could---and should---administration, fearing the loss of tuitio n dollars, legally prohibit this teaching method? Would the courts rule on a suit as they did in the Carley and Lovelace cases? Or would they rule as they did in Kingsville? There seems to be no princ ipled way of knowing. And what if administration decided that the experiential method was inappropriate because the course limits enrollment to only 15 students, or because the expe riential method was otherwise pedagogically inappropriate? 15 ..........The second example involves courses, wher e students are required to spend time in actual work-type situations like internships and practica relating to their major. Certainly internships fus e content with method. If students complained, could such methods be ruled inappropriate? In these instructional situations, students seldom complain, however, because like the small group experience and unlike a research-based course, many like such concrete (and so-called "real world")---yet unrepresentative experiences. The th ird example involves the question: is teaching course content, based on findings from the research literature in a content area, a teaching method? In this situation, course content fuses with instr uctional method. In teaching psychology, to non majors at least, many students do not like a resear ch-based approach to the subject. For example, many students come into class with a pop psychology belief system which typically means a clinical orientation and they want interesting anecdotal ill ustrations. In principle, then, it is faculty who would seem to be the best judge of what teaching me thods are appropriate for their areas of expertise. 16 The Faculty Right to Assign Grades..........Just as most faculty seem to believe that academic freedom pertains not only to free speech in the classroom, but also to teaching methodology and required course work, it is also generally believed that faculty are the final authority for a ssigning grades to student work. Even this traditionally viewed sacrosanct prerogative, howeve r, is dependent on a number of contextual conditions...........In the SEF case, Lovelace v. Southeastern Massachusetts University (see endnote #9), the court ruled that the non renewal of Lovelace's cont ract was because of what he did, not because of what he said Specifically, the court ruled that student compl aints about his grading policy had nothing to do with his speech, noting, Matters related to grading policies...are policy ma tters for the university (p.424, italics added). It is common practice fo r institutions who have accepted AAUP guidelines to develop grade-change policies an d a set of explicit procedures, stating that state prior to any change of grade assigned by a faculty that the institution and/or a faculty committee shall notify the faculty member of any such change and the reason for the change. The crucial issue of who constitutes the university will be addressed in detail below. ..........Although many cases support institutional authority over faculty instructional activities, including grading, faculty academic freedom in matt ers of grading can prevail over institutional authority. In a case that is often cited, Parate v. Isibor 868 F.2d 821 (6th Cir. 1989), basing their decision on the First Amendment, the court limited the deference traditionally accorded administrative decisions about grading of students (Kaplin and Lee, 1995, see section 3.7.2.


8 of 44Academic Freedom in the Classroom 311). The dean o f the school in which the faculty was a non tenured professor ordered the faculty to change a f inal grade of one of his students. The faculty member argued that his dismissal was in retaliation for his lack of cooperation regarding the grade change and therefore violated his First Amendment a cademic freedom. Relying on the Free Speech Clause, a court agreed saying that[B]ecause the assignment of a letter grade is symbo lic communication intended to send a specific message to the student, the individual professor's communicative act is entitled to some measure of First Amendment protection...........The court further reasoned:[T]he professor's evaluation of her students and as signment of their grades is central to the professor's teaching method.... Although the indivi dual professor does not escape the reasonable review of university officials in the assignment of grades, she should remain free to decide, according to her own professional Judgment, what gr ades to assign and what grades not to assign.... Thus, the individual professor may not be compelled, by university officials, to change a grade that the professor previously assigned to her student. Because the individual professor's assignment of a letter grade is protected speech the university officials' action to compel the professor to alter that grade would severely burden a protected activity [868 F.2d at 828].Thus, the Dean's act of ordering the faculty to cha nge the grade, contrary to the faculty's profession al judgment, violated his First Amendment right. 17 ..........A further significant aspect of the court 's ruling, however, is this: had university administrators changed the student's grade themselv es, the Dean's action would not have violated the faculty's First Amendment rights. 18 As Kaplin and Lee (1995) point out, "The protecti on that Parate accords to faculty grading and teaching methods is therefore quite narrow—more symbolic than real, perhaps, but nonetheless an important step away fro m the deference normally paid institutions in these matters." 19 .The Courts, The University, The Faculty, and Settin g Academic Standards 20 ..........From the legal cases involving SEF review ed in this series of papers, the courts have consistently ruled as follows:Summary: From the cases analyzed, the courts have c learly said (68) universities must be allowed to set standards, including (69) course content, (7 0) homework load, and (71) grading policy..........Indeed, with few exceptions, the courts h ave traditionally taken a hands-off approach to academic matters. As noted in the often cited Regents of the University of California v. Bakke (1978) case, which is generally seen in the literat ure as paradigmatic, the court ruled "the four essential freedoms of a university are "to determin e for itself" on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." So the courts have most always maintained that it is not in their purv iew to set academic standards. The pertinent question here that is seldom addressed explicitly a nd categorically is: who exactly constitutes "the university?" Is it faculty? Is it administration? Or is it a cooperative/compromise faculty/administrative set of policies? The questi on of who constitutes the university, both legally and normatively, is central to understanding court rulings.


9 of 44Who is the University That Sets Academic Standards?..........Traditionally---at least in time-honored principle---the answer has been that it is the purv iew of faculty to set academic standards, including cur ricula, course content, and expected level of student performance. Legally, however, it has alwa ys been clear that the university boards of trustee and Regents are the final legal arbiters of academi c standards. In fact, the latter are the university. But as one classic statement on academic freedom c learly points out (Morrow, 1968),This latter usage is clearly distinct and derivativ e; for such corporate autonomy derives its justification ultimately from the services performe d by the scholars whose activity it exists to foster and protect, while, on the other hand, the f reedom of the individual scholar often requires protection from the pressures of his own institutio n, as well as from outside forces (p.4)...........Nevertheless, legally, faculty set standa rds only in so far as they are accepted by specific contractual agreements with these bodies through ad ministrative procedures. As Kaplin notes, "The four essential freedoms concept would apply to both policies developed by administrators and policies developed by faculty if the policies are a dopted by the university as university policy. Technically, the four freedoms (who may teach, wha t may be taught, how it shall be taught, and who may be admitted to study) are attached to institutional policy not to individual administr ators (Personal communication, April 1997, italics added) 21 ..........A cardinal problem, however---at least in relation to SEF rulings---is that the courts often accept certain decisions by individual administrato rs as if they were the formally delegated authority of the boards of trustees and Regents---even in the formal absence of a particular regulation or policy regarding a decision. In short, the courts tend to accept an administrator's decision as if it were based on formal institutional policy. This is important to recognize. For example, as will be noted below, few universities have formal policies about teaching methods or grading. Courts, then, often use the term "university" (1) as if it means any pronouncement by a university regardl ess of the existence of a formal policy, (2) or any pronouncem ent by a single administrator, e.g., a Dean---perhaps assuming the pronouncement to be a f ormal policy. For example, In Lovelace v. Southeastern Massachusetts University (1986), the court ruled, "The first amendment does not prevent a university from terminating an untenured faculty whose pedagogical style and philosophy does not conform to those of the school's administr ation." Pedagogical style and philosophy more often than not includes grading. 22 A collective faculty agreement (e.g., a union con tract, agreements in a faculty handbook, etc.) notwithstanding then, courts tend to uphold individual administrator's decisions on course content and teaching methods ev en when course content and teaching methods are not explicitly a part of written policy. 23 ..........Thus a major variable in any legal ruling is how an issue is addressed in faculty union cont ract agreements and faculty handbooks. While in the Nor thern Arizona University case the court ruled that teaching style is "not a form of speech protec ted under the First Amendment" (Heller, 1986), the arbitration board ruling on the use of SEF at the U niversity of Guam was based on a violation of the union contract (Blum, 1990). One wonders what the Arizona ruling would have been if teaching methodology was explicitly stated in a faculty cont ract. Other union contracts similarly prohibit the use of SEF for administrative evaluation purposes. 24 While policy on course content and teaching method may be included in some faculty agreements, I am aware of only one agreement that includes statements on pedagogical style and philos ophy. 25 Article V of the Vermont colleges statement on academic freedom, for example, states,It is the Policy of the Vermont State Colleges to m aintain and encourage full freedom of inquiry, teaching and research. Academic Freedom implies no t only the unconditional freedom of discussion in the classroom, but also the absence of unreasonable restrictions u pon the classroom


10 of 44instructor's methods (italics added). 26 ..........This, perhaps singular---at least rare--p olicy, is crucial for faculty if academic standards are to remain their prerogative...........It is clear that if faculty want to maint ain this prerogative, they must explicitly have in their agreements and handbooks polices on teaching method ology, grading, and SEF. 27 At least to the extent that standards are not collectively set by f aculty, educational policies such as classes being composed of students with widely---and inappropriat ely---varying ability, class size, and grading standards are outside faculty purview, yet all of t hem have impact on SEF. Even so, institutions do not legally have to agree to faculty-developed stan dards. As Stone (1995)observes:At one regional institution, faculty surveys repeat edly reported widespread concern about institutional reliance on student ratings of instru ction as a basis for faculty evaluation. The facul ty senate of the institution tried repeatedly to addre ss the problem, but the solutions desired by the faculty were administratively rejected or shunted a side, in part, because of concerns about student satisfaction. Thus, the administrative view prevai led...........Such overruling of a faculty body is not infrequent. 28 ..........Ideally, for the courts to take a hands-o ff approach, refusing to second guess academic matt ers is the prudent course. But the world is not ideal, as demonstrated by the courts more hands-on approach in discrimination, e.g., Disparate Treatme nt and Disparate Impact cases (see Haskell, 1997c). In addition, the world is not ideal in oth er respects as well, especially pertaining to SEF. By assuming validity of SEF data and "good faith" on t he part of university administrators, the courts, by default or in a de facto manner, are setting academic standards. The quest ion now is, is the "good faith" attributed to university boards of trustees and administrators justified? .SEF and Administrative Pressure to Maintain Enrollm ent Not Academic Standards 29 ..........Clearly, administrators are tending to as sign increasing importance to SEF for tenure and promotion decisions (see Haskell, 1977a). The ques tion is: why? The obvious answer is that they are concerned with the quality of education. This assumes, however, that administrators are more concerned about quality education and are acting mo re in the best interest of students than are faculty. 30 Understandably, the courts are apparently not awa re of numerous changes and pressures within higher education. For example, with increas ed competition for students, institutions have become increasingly concerned with maintaining stud ent enrollment and tuition monies as well as to reduce the number of tenured faculty. As noted bel ow, consumerism is in academic quality is out This view is not a politically radical one; nor is it a well-kept secret. ..........It seems reasonable to conclude that cour ts have in effect not taken a hands off approach, b ut have been setting academic standards (albeit perhap s unintentionally)---by apparently assuming that institutional administrators' primary goal is quali ty education. As indicated above, courts have tended to accept administrative (subjective) judgem ents if they appear "sincere," grounded on some evidentiary basis, made on the "vigor and variety o f student criticisms," and "not arbitrary or capricious and were exercised honestly upon due con sideration." These rulings make a number of naive assumptions, assumptions that at one time may have been relatively valid. As I previously observed (Haskell, 1997c), "The courts continue to assume a kind of pre 1960s academic Camelot. If such a round table of academic knights ever did historically exist or was merely mythical, it certainly now exists only in myth." As Copeland an d Murry (1996) have noted, "the judiciary has tended to act as if colleges and universities could be trusted to act in good faith" (p.246). Courts


11 of 44should no longer assume altruistic institutional mo tives that were perhaps true prior to the 1960's. ..........In Robert Kramer v. The President of the University of British Columbia (1992), for example, it was noted by one student "that some of the unhap piness came from the fact that the levels of Japanese language ability were badly divided; some found it easy, others very hard" (p.12). It was further noted that the department head viewed Krame r's course evaluations "with some alarm" and that a number of students had stated that Dr. Krame r's teaching would cause them to stay away from the Asian Studies department. Since the course was the general introduction to the subject, such negative comments were of great concern to the depa rtment head. In another report of a faculty dismissal, involving low student evaluation of a fa culty member because of his class standards and requirements, administration was quoted as saying, "We're an open-admission university. A large fraction of the class was completely unable to comp ete" (Magner, 1995). ..........In another case ( William Sypher v. Vermont State Colleges Faculty Fe deration 1982), the court seemed to accept that whatever level of stude nt is enrolled in a class, the instructor is obliga ted to teach even though standards may be lowered. Res ponding to being denied reappointment, and in defense of his student rating level, Sypher wrote a letter to the Dean in which he said, "It is certai nly distressing when very good is not good enough, espe cially at a college with a modestly-talented student body that often discourages efforts at subt lety, wit and deeper penetration of subjects." The Board responded to his letter saying, other actions and statements by Grievant constituted legitimate reasons for not retaining him. In a May 1980 letter to [the Dean], Grievant expressed his contempt for Castleton students" (p.135), concluding, Accordingly we find credible the College's contention that Grievant was not reappointed becaus e of his teaching effectiveness" (p.135, italics added). 31 SEF, then, plays an important role in maintaining student enrollment. 32 ..........SEF also plays a role in the continuing a ttempts to reduce the number of tenured faculty on a campus. As I explained in a previous paper (Haskel l, 1997a)What is not widely understood is that SEF is often a kind of Trojan Horse in the battle against tenure and academic freedom. It often becomes a st ealth mechanism by which to covertly abrogate both tenure and academic freedom...........In a rare published recognition of the st ealth role of SEF in abrogating tenure, Knapper (19 77) suggestedThat complaints about teaching are commonly cited a s a cause for dismissal is, in a rather perverse way, encouraging, if it reflects an increa singly important status assigned to this academic function. On the other hand, it may be that studen t complaints about teaching are the symptom, not the cause, of the trouble, or that teaching dif ficulties are cited as the excuse, but do not reall y constitute the main reason, for dismissal (p.199, i talics added). 33 ..........As already noted, courts do not trust tha t universities will act in good faith with regard t o discrimination cases. They do, however, tend to as sume good faith with regard to pedagogical methods, grading, and other standards. 34 ..........Considering the literature on the lowerin g of standards in higher education, then, it would seem that the courts should no more automatically a ssume good faith in educational matters than they do in matters of discrimination. In assuming good faith the courts are setting academic standards by default. But this is not likely the e nd of it: Pressures to grade easily, to lower stand ards in terms of content and requirements, and to pass s tudents who have not earned passing grades takes on a different meaning in light of recent court cas es by students charging the institution with not teaching them to an adequate level of competency (A merican Psychological Association Monitor, 1994; Chronicle of Higher Education, 1996)...........Given the cases presented here demonstrat ing the SEF-driven administrative pressure on faculty to lower their classroom standards, the con sequences of such practices already have reached


12 of 44the courts. Increasingly, students are suing univer sities, claiming that the education they received was poor or failed to live up to promises made in c ourse catalogues. As higher education focuses increasingly on vocational "education," such cases may also increase. Institutions can not have it both ways: to pressure faculty to grade more easily on the one hand, and ensure student competency, on the other. They do not go together. Academic Freedom and Assumptions Underlying Student Rights to SEF..........There are a number of assumptions which u ndergird the new right of students to evaluate faculty and its use in administrative decisions for reappointment, promotion and tenure, assumptions which have been both explicit and implicit in the c ourt rulings on SEF. Four of the more significant assumptions are: (1): Student as Consumer, (2), Hig her Education as a Democracy, (3) Students as Qualified Evaluators, and (4) Student Learning as t he Responsibility of the Faculty. Assumption # 1: Student as Consumer and the Univers ity as Business ..........SEF has come to be seen as a right. Ther e is a pervasive business metaphor of consumerism in higher education (an assumption that I briefly a ddress in Haskell, 1997a). The university considered as a business carries with it the attend ant and associated ideas of students as consumers in an educational marketplace As the well-known scholar David Reisman (1981) n oted years ago in this regard, "This shift from academic merit to student consumerism is one of the two greatest reversals of direction in all the history of Americ an higher education; the other being the replacement of the classical college by the modern university a century ago" ( p.xi). From this model, it follows that students are consumers of in struction and therefore have a right to evaluate and influence instruction. To question the-student -as-consumer right is difficult. As I noted in a previous paper (Haskell, 1997a)While it is difficult enough to deal with political ideological and economic pressures, dealing with consumer pressures has become nearly impossibl e. If denying fiscal efficiency is viewed as unreasonable, irresponsible, and even irrational, t o deny "consumer's" their demands is viewed as undemocratic and downright mean spirited...........Some state-supported schools advertise th emselves as a business. 35 The fact is, a university is not---or should not be---like a business. The b usiness metaphor is an inappropriate one. And at least one court has recognized the inappropriatenes s of this metaphor. 36 ..........As McMurtry (1991) Damron (1995) and othe rs note, the metaphor of consumerism itself is based on a number of incorrect and opposing assumpt ions. 37 Stone (1995) suggests thatHigher education makes a very great mistake if it p ermits its primary mission to become one of serving student "customers." Treating students as customers means shaping services to their taste. It also implies that students are entitled to use or waste the services as they see fit. Thus judgin g by enrollment patterns, students find trivial cours es of study, inflated grades, and mediocre standards quite acceptable. If this were not the c ase, surely there would have long ago been a tidal wave of student protest. Of course, reality is tha t student protest about such matters is utterly unknown. Tomorrow, when they are alumni and taxpay ers, today's students will be vitally interested in academic standards and efficient use of educational opportunities. Today, however, the top priority of most students is to get through college with the highest grades and least amount of time, effort, and inconvenience...........Stone recognizes that "student ratings of instruction can serve as valuable feedback to an instructor about student preferences, but there is good reason to suspect that using them as a basis


13 of 44for administrative decisions on promotion, tenure, and merit pay has been a major contributor to the academic decline and devaluation of the past twenty -five or so years." There are further assumptions underlying the consumer metaphor. As Da mron correctly observes,The concept of "student as consumer" begs a number of substantive issues, not the least of which is who pays for the services rendered to students a nd who benefits from them. In most universities and colleges, the lion's share (well over 80%) of t he cost of post-secondary education is paid by tax payers. As McCabe (1981) has noted, virtually all college students are on sizable public scholarships. The remainder is defrayed by private stipends and scholarships, low interest government loans, or students and their parents. T hus, in the vast majority of cases, tax payers, governments, parents, and contributors to scholarsh ip funds have an important stake in the services provided to students and are rightly conce ived of as consumers of college teaching and its products. So too are the employers who demand and s upport professional programmes and routinely hire their graduates. Similarly, univers ities that accept college transferees are also consumers of college teaching insofar as they accep t the curricula of colleges as reasonably equivalent to their own and grant transfer credits to those entering their degree programmes. If consumer satisfaction is to serve as the criterion of effective teaching, the satisfaction of all of t he above parties must be assessed. Given the concerns about the quality of secondary and post-secondary education recently expressed by thes e groups, it is unlikely that advocates of the "student as consumer" will find this palatable...........Clearly the simple student-as-consumer me taphor is inappropriate. 38 Thus the "consumer" of higher education is in fact a wide constituency of groups distributed in both space and time. The metaphor of student as consumer is more appropriate ly replaced by the metaphor of student as worker or as apprentice...........The consumer metaphor and its implementat ion via SEF used for administrative purposes constitutes the newest threat to academic freedom a nd instructional quality. 39 McMurtry (1991) has noted that, education has always been subject to ex ternal pressures whose purpose is to subordinate it to vested interests of various kinds, whether it is slave-holding oligarchies, theocratic states, political parties or the prevailing dogmas of colle ctive beliefs. I suggest that the difference today is that threats to academic freedom come from within: the consumer-student. Assumption # 2: Higher Education as a Democracy..........Closely related to the business metaphor of consumer is the tandem political concept of democracy, and like the former, the latter undergir ds the administrative use of SEF. In a democracy it is always tempting to transfer this political pr inciple to just about every realm of life, includin g higher education. So pervasive are the metaphors of student-as-consumer and higher-education-as-a-political-democracy, that to question one is to almost automatically question the other. And just as to question SEF is seen as undemocratic, to question the democracy metaphor is seen as totalitarian. Nevertheless, both metaph ors are inappropriate when applied to higher education, culminating in counterproductive outcome s. ..........As the cum liberal, cum conservative hist orian (depending on who is doing the evaluating), Christopher Lasch (1979) has observed, 40 The democratization of education has accomplished l ittle…It has neither improved popular understanding of modern society, raised the quality of popular culture, nor reduced the gap between wealth and poverty…On the other hand, it ha s contributed to the decline of critical thought and the erosion of intellectual standards, forcing us to consider the possibility that mass education, as conservatives have argued all along i s intrinsically incompatible with the maintenance of educational quality (p.222).


14 of 44..........As I suggested in a previous paper (Haske ll, 1997a), SEF is a major factor in grade inflatio n and the erosion of academic standards. 41 On some campuses, the situation has reached the n otice of accrediting agencies with the grade inflation noted in their reports. 42 ..........Most students do understand the ensuing c onsequences of the consumer and democratic metaphors underlying SEF. A glance at articles fro m online student newspapers reveals strong sentiments against what some students consider the erosion of standards created by SEF. 43 Some students are thus quite aware of the effects of SEF on their education. SEF has become such a matter of amusement---when they are not detrimental to ones career---that a recent article in a prestigious psychological journal that is not given to publishing such articles has published an apparently serious piece on "How to improve your te aching evaluations without improving your teaching" (Neath, 1996). It is time to get beyond the ideologies of student consumerism and democracy and begin dealing with the educational co nsequences. Assumption # 3: Students as Qualified Evaluators..........Validity of assessing teaching effectiven ess assumes qualified assessors. In both the consum er and democratic metaphors, it is assumed that studen ts are qualified to judge and assess. The fact is that even under ideal conditions most students are not qualified to judge faculty teaching effectiveness. 44 Ideally they may be able to judge certain aspects of teaching, e.g., clarity of presentation, instructor being organized, interest level, etc. In addition, the assumption of student as qualified evaluator of teaching effectiveness in tu rn subsumes numerous other assumptions. These assumptions include appropriate (a) maturity level (b) ability level, and (c) good faith motivation. A most cursory of glances at professional articles, r eports, periodical media, books, and educational world-wide-web Internet sites yields an abundance o f documentation on grade inflation, low SAT scores, lowered academic preparation of students, a nd lowered admissions requirements, with a consequent increase of remedial college courses (Ad elman, 1996; 45 American Federation of Teachers, 1996; Bauer, 1996; Blum, 1992; Brimelow, 1996; Chronicle of Higher Education 1997; Chronicle of Higher Education 1991; Fighting grade inflation, 1994; Gordon, Har tigan and Muttalib, 1996; Goldman, 1993; Gose, 1997; Guernsey 1996; Hertling 1996; Kolevzon 1981; Lambert, 1993; Lasch, 1979; Leo, 1996; Sacks, 1996; Simon, 1996; Stedman, 1996; Stone, 1995; Summerville, et al, 1990; Walker, 1992). Thus, acc eptance of the above assumptions seems highly questionable. Indicating and documenting just how widely acknowledged the recognition of the inappropriate acceptance of these assumptions is an d their effects on higher education, it has reached comic strip proportions as the frequent subject of the popular Doonsbury comic strip. 46 ..........Student level of (1) preparedness, (2) ab ility level as measured by most any national test, (3) expectations about learning, (4) motivation level, and (5) hours spent studying have all been in decline for years, yet at the same time a sense of entitlement, motivation, and the average grade has risen from a C perhaps C+ to a B, perhaps a B+. 47 SEF contributes more than its share to this state of affairs (see Haskell, 1997a). The Higher Educat ion Research Institute recently released the National Norms for the freshman class of 1995. The survey was completed by 323,791 freshmen entering 641 two-and four-year colleges and univers ities. Among other characteristics, the survey showed that students tend to be increasingly diseng aged academically. Students are spending less time studying and doing homework, with the percent reporting six hours or more per week dropping from 43.7 percent in 1987 to 35.0 percent in 1995; spend less time talking with teachers outside of class (47.0 percent reporting one or more hours per week, compared with 62.0 percent in 1989), and the highest percentage of students ever (33.9 perce nt) reporting being frequently bored in their classes. 48 ..........As demonstrated in the legal opinions on SEF, however, these realities seem not to have


15 of 44reached the court. Moreover, as Abrami (1989) obse rves, there is little to no rigorous research demonstrating the complex network of relationships existing between student impressions about the processes of instruction and the impact of those pr ocesses on student cognition and their affective responses to it. Despite this data, many researche rs still maintain that SEF data is valid and appropriate for use in tenure, promotion, and reapp ointment decisions (given that certain adjustments are made in the SEF form and analysis o f the data). 49 Assumption # 4: Student Learning as the Responsibil ity of the Faculty ..........A further assumption underlying SEF that seems to be upheld mostly by default in court rulings, and by explicit educational philosophy in much of higher education, is that responsibility fo r student learning lies with faculty. SEF indeed hol ds faculties largely responsible for most of studen t learning. Granted, to some undetermined degree thi s pedagogical value can be justified. After all, the primary (or at least public) purpose of SEF is to attempt to establish "teaching effectiveness" ---which in fact means being responsible for studen t learning. Now, given (a) the lowering of admission standards, which has lead to (b) the admi ssion of students that would historically not have been admitted, (c) the above suggested inappropriat e maturity level, (c) inappropriate expectations, (d) inappropriate study time, and (f) lack of goodfaith motivation by large numbers of students, how reasonable is it to hold faculty responsible for st udent learning? 50 ..........Amongst many faculty and administrators, the assumption seems to be that large numbers of students are unable to learn appropriately and requ ire "inordinate" assistance from faculty. It is sa id that they are young and immature and thus require c onsiderable nurturing. This view is perhaps appropriate for high school students, but not for c ollege level students, at least to the degree it is considered to be required. Indeed, some courts hav e indicated that there is a maturity line between secondary and post secondary expectations and regul ation of students. For example, in Lansdale v. Tyler Junior College (1972), considering the applicability to post seco ndary education of a prior precedent permitting high schools to regulate the l ength of students' hair, the court refused to exten d the precedent. As one scholar explained (Kaplin an d Lee, 1995):The college campus marks the appropriate boundary w here the public institution can no longer assert that the regulation of . [hair length] i s reasonably related to the fostering or encouragin g of education. There are a number of factors which support the proposition that the point between high school and college is the place where the line should be drawn.... That place is the point in the student's process of maturity where he usually comes within the ambit of the Twenty-Sixth Amendment and the Selective Service Act, where he o ften leaves home for dormitory life, and where the educational institution ceases to deal wi th him through parents and guardians. 51 In a more recent case involving community college s tudents ( DiBona v. Matthews 269 Cal. Rptr. 882 (Cal. Ct. App. 1990), a California Court of App eal ruled that administrators violated a teacher's free speech rights by canceling a controversial pla y production from a drama class. Distinguishing the case before from those involving minors in elem entary and secondary schools, the court ruled that the college could not cancel the drama class s olely because of the vulgar language in the play (Kaplin and Lee, 1995)...........Each year state and federal courts render decisions in numerous cases involving both elementary, secondary, and post secondary education and have recognized that these precedents cannot be uncritically applied to each other. As Ka plin and Lee (1995) observeThe majority holds today that as a matter of law th e college campus is the line of demarcation where the weight of the student's maturity, as comp ared with the institution's modified role in his education, tips the scales in favor of the individu al and marks the boundary of the area within


16 of 44which a student's hirsute adornment becomes constit utionally irrelevant to the pursuit of educational activities (p.13).Unlike the courts, many faculty and administrators have been increasingly blurring this educational line---by design and, in effect---transforming coll ege level men and women into high school students. I suggest this has been accomplished in part by lowering admission requirements, academic standards, and expectations. In addition, I suggest that many faculty, administrators, and educational theorists have been uncritically transf erring research findings and teaching methods originally designed for elementary and secondary le vels to higher education. ..........What most teaching methods and educationa l philosophy that are transferred from research on elementary and high school learning environments do ---in addition to lowering the content level of the subject---is simply to use the college classroo m for work that students should be doing outside of class: practice, memorizing, reviewing and other wo rk. This is an additional way that higher education standards are lowered (See Chatterley and Peck's [1995] "We're crippling our kids with kindness!!" in the Journal of Mathematical Behavior as an example of this on the elementary level.) 52 SEF and Conflict of Interest in Relation to Student -Instructor Interface..........SEF used administratively sets up inheren t conflicts of interest between student and instruc tor. Perhaps first and foremost, to have students evalu ate faculty for administrative purposes place faculty in an educational, a "political," as well a s a potential economically vested interest relationship to students. These are not appropriat e roles for educators to be forced into. When political and economic pressures impact instruction clearly, the education of students is in danger o f being degraded. Curricula and Conflict of Interest..........SEF not only can affect individual facult y, it can affect curricula as well. A faculty membe r at Wichita State University (Goldman, 1993) notes that in a thirty-faculty education department, responsible for certification of teachers, six facu lty have been hired in the past 25 years as assista nt professors to teach Foundations of Education. All faculty were apparently well qualified, receiving their doctorates from excellent universities. Only one of these faculty has been awarded tenure; none was promoted. According to Goldman, the reaso n for this was student evaluations. In general, as the data show, required courses hold less intere st and receive lower evaluations than elective courses. Moreover, students seem to especially dis like the course in educational foundations. In addition, students who are drawn to become teachers are concrete-sequential, and are less interested in the abstract and theoretical content of the foun dations of education course. 53 This leads the faculty who teach the foundational course to receiv e lower student evaluations than other education faculty. Because student evaluations are often---a t least in effect---the primary, if not the only, gauge of teaching quality, and since teaching evalu ation usually out-ranks research and scholarly productivity on most campuses, when tenure, promoti on, and salary increases are awarded, these rewards will not be evenly distributed to faculty w ho teach the foundations and educational psychology courses. Rewards will accrue to the con crete-oriented methods faculty whose courses will further intensify the concrete orientation of teacher preparation. This in turn can then lead to a downward spiral in teacher preparation.


17 of 44Economic Conflict of Interest..........Indeed, the pressure for some faculty to conform to SEF is great. In one case ( King's College v. Anne S. De Fabry 1983) a faculty member requested of some students that they write a letter of recommendation for her application for promotion to full professorship. She had told them: "The exam is over, we have won, and I want you to know y ou are absolutely free; but, of course I would appreciate if you do it." According to the lawyer for the college, during the hearings, the plaintiff 's request to the three students was clearly abusive a nd the Principal of the College mentioned one instance where she "attempted to exploit them (the students) for her private advantage" (p.6). In a previous situation, she had sent a registered lette r to a student which said, "Since your evaluation i s the only negative one out of the whole class, it is obvious that it is untrue and made deliberately in the intention of damaging my reputation, and perhap s, destroying my career. I therefore ask you to retract what you have written, and offer some sort of apologies. Should you decide not to comply with my request I would have to take some legal act ion" (p.8). 54 ..........As some legal scholars point out (Rebell, 1990), the significant aspect of faculty evaluatio n in general is that it serves a dual purpose:First, it is used to promote teacher training and d evelopment, while at the same time it serves to rate individuals for job termination. Such a syste m thereby sets up an inherent conflict of interest between the formative and summative functions, as t he openness and cooperation necessary for staff development is in conflict with the self-prot ective, and adversary modes of rating and dismissal decisions. In the past, when summative d ecision making constituted only a minor part of evaluation activities, the underlying conflicts rarely came to the surface. However, since the adoption of educational reform legislation, evaluat ion techniques are increasingly being used to raise accountability standards by denying professio nal certification, retention, or promotion to those who do seem to meet acceptable standards. Th us, says Rebell, summative decisions, i.e., the type of decision which often leads to court cases, are becoming increasingly significant, and this increasing significance of summative evaluation dec isions means more cases being brought before the courts (p.339-40).As Rebell concludes, the adversary nature of the fa culty evaluation process often contradicts the purpose for which they were initially developed: in structional effectiveness. .Release of SEF to Students and to The Public 55 ..........In addition to the administrative use of SEF, in recent years, other uses of SEF have become controversial, including releasing SEF to students and to the public.Summary: (76) Unlike most personnel records, SEF c an be released to students and the public, on the grounds, that (77) students are not considered the general public, and (78) that SEF records are public and withholding them from public access does not outweigh the public interest in them.While it is illegal to post a student's grades usin g a social security number or date of birth and a h ost of other confidentiality restrictions, 56 on a number of campuses, SEF data are openly publi shed and sanctioned by some administrators and state governm ent officials. In what many faculty see as an outrageous attempt to control the academic classroo m, some state governments have sanctioned the release of SEF to the campus community, and in some cases to the general public, by publishing faculty student evaluations on the university's wor ld wide web pages, thus making them not only


18 of 44available on campus but globally. One recent surve y of accounting departments found that 11.4% of the respondents indicated that SEF scores are made available to students (Crumbley and Fliedner, 1995). Indeed, a search using "faculty evaluation" on the world wide web will return numerous examples of published SEF. All this while faculty are restricted from divulging information on students (see Pennsylvania State University, 1996). Articles are, however, beginning to appear that question the legality of publically releasing SEF ( Robinson and Fink, 1996). ..........As I addressed in an earlier article (Has kell, 1997a), some faculty believe that due process and defamation issues are involved in SEF (see Crumbley 1996), suggesting that faculty are entitled to at least the same rights as students. The Fourteen th Amendment, for example, requires due process before a public institution may deprive one of life liberty, or property. A faculty member's reputation is considered a liberty right, and for t enured faculty the courts have pronounced the possession of tenure a property right. Presumably, any inappropriate action depriving faculty of these rights would be open to legal action. It has been suggested that if a university damages a faculty's reputation by publishing false and anecdo tal data from SEF, faculty should be able to sue for libel or defamation. The concept of defamation typically refers to communication that causes a person to be shamed, ridiculed or held in contempt by others; to lower their status in the eyes of the community or to lose employment status or earnings or otherwise suffer a damaged reputation. Legally, while defamation is governed by state law it is limited by the first amendment (Black, 1990). 57 According to one source, however, the courts have generally protected administrators from defamation charges resulting from performance evalu ations (Zirkel, 1996). It would seem, however, that these older precedents applied when administra tive evaluations were conducted in private and not publically distributed...........The release of personnel information is a pparently allowed in no other phase of personnel or other key management functions. In typical personn el evaluations, professional validation studies are not permissible unless shown by professionally acceptable methods to be "predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being eval uated." In Title VII of the Civil Rights Act of 1964 the employer must meet "the burden of showing that any given requirement (or test) has a manifest relationship to the employment in question (in Griggs v. Duke Power Co. 401 U.S. 424 (1971). SEF data do not conform to these guideline s. It would seem that a university should be held responsible for insuring that data made public are valid. Given such apparent breaches of confidentiality and privacy, it will be instructive to see how the courts will continue to rule. ..........At the very least, SEF for administrative purposes and certainly the release of SEF data to students and the public create what the courts in a somewhat different context regarding academic freedom have termed a "chilling effect" on faculty behavior in the classroom (see Keyishian v. Board of Regents 1967). SEF in a Larger Context..........In a larger context, it should be asked i f there is reason to assume that what is happening in higher education is unique to the U.S. The answer i s both "yes" and "no." It should also be asked if there is an additional (unintended?) effect of the administrative use of SEF, and the court's affirmation of its use, on the autonomy and future of the larger profession than those that have already been examined. The answer to this latter q uestion is clearly "yes." The Global Exporting of SEF..........Given the largely peculiar U.S. instituti on of a generalized ideology of democracy and of


19 of 44consumerism, it might be suspected that SEF is an A merican institution. The fact is that like many aspects of U.S. culture, SEF is being exported arou nd the world from Canada, to France, Germany, Great Britain, to Hong Kong, and beyond. Thus, an affirmative "yes" is the answer to the opening question of this section. The "no" answer is a mor e conditional one. Just as in the U.S., in other countries SEF appears to be linked to expanding enr ollments to populations of atypical students, which often leads to a lowering of the quality of h igher education. 58 For example, in the late 1980s, policy makers in Hong Kong decided that in order to remain economically competitive, Hong Kong needed to develop its own research capabilities, tr ain more professionals, and provide more opportunities in higher education to a much larger segment of the population. At that time only 3 per cent of high-school graduates went on to post s econdary education; today its about 18 per cent. A recent government-commissioned study there concl uded that the expansion of student enrollment in the university has been at the expense of academ ic quality (Hertling, 1996). ..........Similarly, in France, since its inception in the Napoleonic era, the baccalaurat has been aimed at the highest achieving students. The baccalaurat has earned a strong reputation in France and around the world, and has even inspired others to pattern their programs after it. Over the years it has been criticized for being elitist. Before 1 950, only 5 percent of an age cohort typically earn ed the baccalaurat in a given year. By 1992, 51 percent of the age c ohort passed the baccalaurat 59 Exams consist of both written and oral sections, w ith written tests taking up to four days with total testing time averaging up to 25 hours. The baccalaurat process has grown as a result of the government's desire to make it accessible to a larg er, more diverse population. Questions are also being asked about the lowering of standards...........As two British researchers point out (Hus bands and Fish, 1993), in some countries with politicians knowing that attacks on what is widely seen as the world of a privileged elite are electorally popular, there has been populist pressu re encouraging them to intervene in the workings of higher education in order to reduce its apparent elitist nature. Enrollments in higher education have increased significantly in the UK, the Netherl ands, France and Germany from a low former enrollment level by mandating new modes of entry su ch as flexible study programmes to encourage 'non conventional' students. In Britain, note Husb ands and Fosh (1993),Even though student responses are considered an imp ortant aspect of the UK's approach to quality assessment of teaching, it is difficult to locate p rescriptive statements that the gathering of such information should actually be by formal questionna ire. The questionnaire seems, almost surreptitiously to have become the most widely used means for the gathering of such views within UK universities--partly but (it is true) nor exclus ively at the expense of other techniques. In addition, one does find references to, for example, liaison or consultative committees between students and staff, which may operate at institutio nal or departmental level. There are also institutions that favour gathering students' views on teaching using semi-directed or structured discussion groups lead by a facilitator who then pr epares a report on the basis of comments given by participating students (e.g. Wisdom, 1991). Silv er (1992). In his report on the present state of student feedback techniques in British higher educa tion, makes a number of observations about general practices, as well as giving specific infor mation about 14 institutions in England and Scotland that were examined in the course of his st udy. He describes the student questionnaire as "by far the most commonly used" method of obtaining feedback and offers a summary of arguments for and against such use, as well as disc ussing the variety of practices in its implementation (e.g. subject-specific versus compre hensive questionnaires or sampled responses versus total coverage) (p.100-101).The authors go on to report that unsurprisingly, wi th the modest exceptions noted above, there is virtually no published research literature on issue s of validity and bias in the use of SEF in German universities: "The extensive debates about the dim ensionality of student assessment of teaching that have long raged among statistically oriented Americ an, Canadian, and Australian researchers in higher education, and more recently in The Netherla nds, seem as yet to have no complement in


20 of 44Germany" (p.103). As indicated in the opening to t his paper, one of the few places there seems to be any question regrading SEF as an infringement on ac ademic freedom is in Germany. Husbands and Frosh continue their view from Britain and Europe o n SEF:It is a sad commentary on the gullibility of some p eople in the face of numerical data that it required the intervention of the courts to force th e discontinuation of the more gross forms of this type of interpretation. As far as we know, there h ave been no comparable cases in European courts but, if European universities follow the Ame rican example of using student evaluations largely or exclusively for summative purposes, it i s only a matter of time before there is external examination of the techniques being used, and of th eir suitability for the purposes for which they are intended. Certainly, if someone were, say, den ied reappointment only or principally on the basis of the ratings that he/she had been given in students' assessments of his/her teaching, the institution concerned might expect to have the vali dity of its procedures on this subject examined extremely critically by the courts. Moreover, pers istent denial of promotion merely on these same grounds alone might well lead to constructive dismi ssal proceedings instigated by the aggrieved individual. Again, the criteria and procedures wou ld then come under very critical scrutiny (p.110).Since Husbands and Fosh are largely addressing the non administrative use of SEF, they correctly conclude that they should not be interpreted as a c alling for the complete discontinuation of SEF. Legal and Administrative Default-Enforcement of Fac ulty Allegiance ..........Finally, and most importantly, there is a n additional unrecognized contextual effect of the administrative use of SEF, and the courts' affirmat ion of its use, which in large measure undergirds the effects that have already been examined (e.g., SEF, grading, instructional methods, and standards). More specifically, this effect is the forcing faculty to shift from their traditional pri mary allegiance to the standards and norms of their disc ipline and to the larger profession of teaching to an allegiance with the standards and norms of the p articular institution in which they teach. This is a major shift. The shift is the consequence of the S EF court rulings---and other issues addressed in this series of articles---which tend to attribute a n inordinate degree of "good faith" in institutions and their administrators, giving them by force of law, the authority to decide (1) methods of instruction, (2) course content, and (3) grading practices...........The implication of SEF court rulings is t his: that faculty are forced to teach to whatever l evel of student is enrolled in a particular institution or be subject to low evaluation by those students w ho may not have developed the ability to cope with tra ditional expected standards. The SEF is then used in tenure, promotion, and reappointment decisi ons. In this regard, recall the statement above by an administrator: "We're an open-admission unive rsity. A large fraction of the class was completely unable to compete" (Magner, 1995)...........Unlike what many see as a voluntary compl iance by faculty to pressures resulting from SEF, 60 the "unfriendly" court rulings presented in this s eries of articles legally enforces compliance to institutional acceptance of academic standards b ased on student evaluations. In my view, these rulings impinge on academic freedom by a quasi form al (i.e., by default) setting of academic standards. It should be noted that many of the rul ings are not specific to cases involving SEF as similar rulings have been extant in other education al contexts for some time. When applied to SEF, however, such rulings seem to widen the context of their original application. ..........This legally enforced shift in faculty al legiance not only affects instructional matters, bu t arguably changes the nature of the faculty employme nt relationship to the institution. Traditionally, faculty have not considered themselves employees of the institution in the standard sense of an employee in a business corporation; the relationshi p has been generally seen as an independent contractor. There are crucial differences, however that render faculty not quite like traditional


21 of 44employees in business. The academic governance sys tems of universities render faculty "partners" in the management of the institution, though recent ly there have been suggestions to reduce the traditional role of faculty governance. 61 ..........In terms of contract law, however, facult y are employees of the institution, and as I noted above, legally, faculty set academic standards only in so far as they are accepted by specific contractual agreement with the institution (see sec tion: Who Is the University That Sets Academic Standards? ). The situation is not quite as clear-cut as it m ay appear. It is unclear, for example, if courts would accede to a formally stated set of fac ulty standards and norms if not accepted as a contractual agreement by the institution. As Kapli n suggests, courts sometimes could and indeed might "accede to professional standards and norms o f faculty even though such standards and norms are not embodied in a formal contract. Apparently, courts could so rule under the theory that such standards and norms are part of local or national ‘ academic custom and usage' (personal communication, August 11, 1997. See also Kaplin an d Lee, 1995, section. But the courts apparently seldom accede to such informal norms. I n any event, at the very least, the legal rulings seem to shift the status of faculty---in effect, if not in total fact---from an independent profession al to an employee. If so, then additional changes in tra ditional faculty prerogatives will likely follow, further eroding academic freedom...........As already noted, higher education is inc reasingly being seen as a business The university considered as a business carries with it the attend ant and associated ideas of students as consumers in an educational marketplace and faculty as employees of the business. Thus, the enforced shift in faculty allegiance can lead to a domino effect in e roding academic freedom and tenure. It is a shift with crucial implications of its own which needs to be addressed by higher education. 62 ..........Once again, as I discussed in the above s ection, "Who Is the University That Sets Academic Standards?" if faculty are to regain and maintain their academ ic role they need to formally and in detail address SEF, teaching methods, and grading i ssues in their contractual agreements and handbooks. As Kaplin and Lee (1995) have suggested relative to academic freedom in general, "It is especially crucial for institutions to develop thei r own guidelines on academic freedom and to have internal systems for protecting academic freedom in accordance with institutional policy" (Section 3.6.1, p. 192). This would appear to be especially true for SEF, teaching methods and grading policies. Conclusion..........The issue of what sustains SEF and its as sociated problems of academic standards and of maintaining student tuition is a complex one, inclu ding positive reinforcement patterns by all parties involved. Assuming that the situation calls for at least some modicum of change, it can not be accomplished on an individual level; it has to be a ccessed on a systems level. On a macro level, this means changing cultural values about education, the university's economic orientation, administrative practices, student orientation to le arning, and faculty collective action. We must change the reward structures so that each party doe s not gain from the situation. Currently, parents gain when their children who might not otherwise ea rn a college degree do acquire one; college presidents gain by demonstrating to boards of trust ees that they are constructing new buildings; trustees gain by demonstrating an economically viab le institution, other administrators gain because they can show the president growth within their own administrative units; other units within the university like academic departments gain because d epartment budgets tend to be based on student enrollment numbers; students gain because they do n ot have to study hard to attain an A or B grade-point average; 63 and finally, faculty gain because they are rewarde d both by student evaluations, and administrators. This is what is c alled a closed, mutually rewarding, escalating system with little to no restraining feedback. Sys tems engineers would recognize this as a run-a-way


22 of 44 system. Unfortunately, change may have to come fro m external sources like accrediting agencies. Notes1. Address correspondence to: Robert E. Haskell, P h.D., Professor of Psychology, Department of Social and Behavioral Sciences, University of New E ngland, Biddeford, ME 04005. Email I would like to thank Professor John Damron, of Douglas College for continually providing me with sources, support, and advice, and especially Professor William A. Kaplin, School of Law, Catholic University of Ameri ca, for his invaluable legal counsel and for reading a draft of this paper. The conclusions rea ched in this paper do not, of course, necessarily reflect the views of those who contributed to its d evelopment. [BACK to document] 2. To question SEF often meets with emotional reac tions. In a response to my first article, Michael Theall (1997), Director of the Center for Teaching and Learning at the University of Illinois at Springfield, opens his critique of my article by la mentably describing my piece as rhetorical, characterizing it as an example of(1) faculty who "fulminate" against SEF, (2) as "si mplistic," (3) "loaded with misinterpretations of the literature," (4) as "mythology," (5) exhibiting an "ignorance of evaluation/measurement literature," as containing (6) "sweeping generaliza tions," (7) "misinformation," (8) as "simply ridiculous!" (9) "ripe" with "hysterical rhetoric," (10) as assuming a "mythical group of better students" of some bygone era, asserting that (11) S EF "are the cause of grade inflation," as suggesting (12) "we do away with ratings." Continu ing, Theall wrote that (13) "Perhaps the weakest part of his article is what isn't there: co nstructive suggestions for improvement," that I (14) "suggested that ratings are a violation of aca demic freedom," and finally---but not exhaustively---(15) that "Academic freedom has been defined in many ways, but never before in a way that suggests the construct (tradition? princip le? tenet?) is vulnerable to the influence of student ratings."In response (Haskell, 1997d), I suggested that the author at least got the last two items correct. I agree with Hamilton's (1997) observation that "One of the greatest contributions an academic can make is an honorable defense of the principles on w hich the university rests" (p.19). [BACK to document] 3. To further demonstrate the negative reaction to question SEF, a more recent negative response to my article is Marsh and Roche (1997). In grossly m isrepresenting my thesis (to which I had no opportunity to respond) they said:Experimental field studies.Marsh (1984, 1987; Marsh & Dunking, 1992; also see Abram I, Dickens, Perry, & Leventhal, 1980; Howard & Maxwell, 1982) reviewed experimental field studies purporting to demonstrate a grading-leniency effect on sets but concluded that the research was weak and flawed. In marked contrast, Haskell (1997) summarized work implying that these studies provide good evidence for a grading leniency effect, even suggesting an implici t collusion among SET researchers to hide this conclusion It is important to counter such dubious but popular interpretations because the use of deception in these studies would presumably fail to meet current ethical standards, making the studies difficult to replicate or refine. Here, we briefly elaborate four crippling weaknesses of these studies by Chacko (1983), Holmes (1972), Powe ll (1977), Vasta and Sarmiento (1979), and Worthington and Wong (1979), and one subsequent stu dy by Blunt (1991). p.1191 [italics added]In fact, the only place I cite Marsh, etc., is in a footnote (# 3, see below). First Marsh and Roche


23 of 44misread the footnote suggesting that I cite Marsh ( 1984, 1987; Marsh & Dunking, 1992; also see Abrami, Dickens, Perry, & Leventhal, 1980; Howard & Maxwell, 1982) relative to grading leniency. My footnote clearly refers to validity of SEF, not grading leniency. Later in the paragraph, I refer to Greenwald's work on grading leniency:3. Since the issue of SEF validity, in terms of lea rning, is so central a few observations of the literature are necessary. Greenwald and Gillmore ( 1996) have categorized some of the significant reviews and empirical research that find in favor o f validity of SEF as measures of quality of instruction, for example, Cashin (1995), Cohen (198 1), Feldman (in press), Howard, Conway, and Maxwell (1985), Howard and Maxwell (1980, 1982), Ma rsh (1980, 1982, 1984), Marsh and Dunking (1992), and McKeachie (1979). Reviews and empirical critiques that are critical of the validity of SEF include, Chacko (1983), Dowell and Neal (1982), Holmes (1972), Powell (1977), Snyder and Clair (1976), Vanta and Sarmiento (1979) and Worthington and Wong (1979). Positions, suggesting cautious support for validit y of SEF while at the same time expressing concerns about the adequacy of their support, inclu de, Abrami, Dickens, Perry, & Leventhal (1980). The recent methodologically sophisticated research of Greenwald (1996), and Greenwald and Gillmore (1996) find strong evidence inconsiste nt with the common dismissive interpretation of the relationship between SEF and high student gr ades as reflecting a relationship between amount learned and student ratings. (Haskell, 1997) .Moreover, Marsh and Roche claim that I implied "an implicit collusion among SEF researchers." Nowhere, however, in my paper do I suggest collusio n among researchers. In addition they refer to my piece as "popular." What does this mean? If pop ular means non statistical, it's a strange definition. If it refers to a piece that emphases the implications and contexts of an issue---a legitimate and important approach to an issue---aga in, a rather strange definition of "popular." My articles are, after all clearly "policy" pieces. F inally, what Marsh and Roche refer to was in a footnote and far from the main thesis of the paper. I consider Marsh and Roche's comment on my article not just a "misinterpretation" or a "mis re ading," but a clear misrepresentation. I also consider it unscholarly in that they do not documen t their misrepresentation (Perhaps Marsh and Roche were obliquely reacting to my response to The all's commentary (see previous endnote above). And unlike Theall, I had no opportunity to reply a nd defend my integrity. [BACK to document] 4. For a recent dialogue on SEF in Change: The Magazine of Higher Learning see Williams and Ceci (1997), Trout, (1997). See also Winston (1997 ) for an economic analysis of long term institutional costs of lowering academic admission standards. For a kinder and gentler view of SEF see Gold (1997). [BACK to document] 5. For convenience of exposition, unless otherwise specified, I will use the simpler "SEF used administratively" for the more cumbersome "SEF as u sed administratively in reappointment, tenure, and promotion decisions." [BACK to document] 6. Neil Hamilton (1977), Trustee Professor of Regu latory Policy at William Mitchell College of Law, has observed that "Many academics do not seem aware of our continuing struggles for the principles of academic freedom and tenure, nor can they make a reasoned defense of the principles" (p.16). [BACK to document] 7. My thanks to Michiel Horn, Professor of History Glendon College of York University, Toronto, Canada, for his collegiality in calling my attentio n to Knapper's chapter. In addition, while researching the first in this series of articles (H askell, 1997a, and as I indicated in endnote # 9 of that paper), according to Husbands and Frosh (1993) at t he time of their writing, there was a lively


24 of 44debate in German higher education over whether stud ent evaluation of teaching is an invasion of academic autonomy. It is perhaps no coincidence th at academic freedom is considered by many scholars to have its origins in Germany. [BACK to document] 8. AAUP Committee C on College and University Tea ching, Research, and Publication. It was adopted by the Council of the American Association of University Professors in June, 1975, and endorsed by the Sixty-first Annual Meeting as Assoc iation policy. They also state: "An important and often overlooked element of evaluating teaching is an accurate description of a professor's teaching. Such a description should include the nu mber and level and kinds of classes taught, the numbers of students, and out-of-class activities re lated to teaching. Such data should be very carefully considered both to guard against drawing unwarranted conclusions and to increase the possibilities of fairly comparing workloads and kin ds of teaching of clarifying expectations, and of identifying particulars of minimum and maximum perf ormance. Other useful information might include evidence of the ability of a teacher to sha pe new courses, to reach different levels and kinds of students, to develop effective teaching strategi es, and to contribute to the effectiveness of the individual's and the institution's instruction in o ther ways than in the classroom" (Itlaics added). As the data in these articles demonstrate, these AAUP guidelines are seldom adhered to. [BACK to document] 9. See also Kaplin and Lee (1995) for a historical overview. "3.7.1. General concepts and principles. The concept of academic freedom eludes precise definition. It draws meaning from both the world of education and the world of law. Educa tors usually use the term ‘academic freedom' in reference to the custom and practice, and the ideal by which faculties may best flourish in their work as teachers and researchers (see, for example, the AAUP's 1940 ‘Statement of Principles on Academic Freedom and Tenure,' in AAUP Policy Docume nts and Reports (AAUP, 1990), 3-10). Lawyers and judges, in comparison, often use ‘acad emic freedom' as a catch-all term to describe the legal rights and responsibilities of the teaching p rofession, and courts hearing such cases attempt to reconcile basic constitutional principles with prev ailing views of academic freedom's social and intellectual role in American life. Moreover, acad emic freedom refers not only to the prerogatives of faculty members and students but also to the pre rogatives of institutions (‘institutional academic freedom' or ‘institutional autonomy'). "See also M enand (1996) for interesting discussion of the early history of academic freedom in relation to ac ademic disciplines. [BACK to document] 10. As in my previous papers on SEF, to render the m manageable I have set a number of definitional and constraining parameters. Accordin gly, (1) the term "court" as used here includes rulings by legally constituted Arbitration Boards; (2) since this paper is only concerned with how these legal bodies have ruled on various aspects SE F data, I do not distinguish between state courts, federal courts, or arbitration boards; (3) neither does this paper deal with the multiple legal variab les that define and distinguish a legal action, influen ce, or outcome in a particular case, such as the particular statute or other source of law being app lied, e.g., the cause of action being asserted, the prescribed prima facie case, the allocation of burd ens of proof, and the standards of judicial review; (4) nor will the paper be concerned with the comple x legal reasoning on which the rulings and outcomes were based; (5) finally, I address the leg al material not as a legal scholar but from the "reasonable man" standard; (6) the purpose of which is to inform future educational policy and legal change. [BACK to document] 11. In Lovelace v. Southeastern Massachusetts University (1986), the courts ruled: (1) "It is important to note what plaintiff's first amendment claim is and to separate speech from action. Plaintiff has not contended that he was retaliated against simply because he advocated that the


25 of 44university elevate its standards.... Plaintiff's c omplaint instead is that he was retaliated against when he refused to change his standards" (p.425); (2) ci ting other cases, the court rejected his contention that a university teacher has a first amendment rig ht to disregard established curriculum content, tha t the first amendment does not prevent a university f rom terminating an untenured faculty whose pedagogical style and philosophy does not conform t o those of the school's administration; (3) that pedagogical style and philosophy "is a policy decis ion which, we think, universities must be allowed to set" (p.426). Further, the court ruled that (4) "We will assume for purposes of this opinion that plaintiffs refusal to lower his standards was a sub stantial motivating factor (see Mount Health Board of Education v. Doyle 429 U.S. 274, 283-284, 97 S.Ct. 568, 574-575, 50 LEd.2d 471 (1977) in the decision not to renew his contract.In Carley v. Arizona Board of Regents (1987), (4) Carley claimed as "protected speech" h is teaching methods where his goal in his commercial art course was to promote a business atmosphere by requiring attendance, promptness, and self-reliance and he required them to meet deadlines. The court ruled (19) his teaching style is not a form o f speech protected under the First Amendment. (20) Decision not to retain a non tenured instruct or, even if based, in part, upon student evaluation s expressing disapproval of his teaching methods, did not violate instructor's First Amendment right to academic freedom; (21) Carley was not denied a cont ract because of expressing unpopular opinions or otherwise presenting controversial ideas to his students. (22) Thus, we conclude that the decision not to retain Carley, even if based, in part, upon student evaluations expressing disapproval of his teaching methods, did not violate his first amendme nt rights (p.1103). [BACK to document] 12. Courts often cite the Regents of the University of California v. Bakke 438 U.S. 265, 312, 98 S.Ct. 2733, 2759-2760, 57 L.Ed.Sd 750 (1978) (the four essential freedoms" of a university are "to determine for itself on academic grounds who may te ach, what may be taught, how it shall be taught, and who may be admitted to study." [BACK to document] 13. One of the major variables in shaping legal ru lings on faculty matters is whether a faculty member's constitutional rights have been abridged. A further variable is whether faculty teach at a private or state college. Because a state operated college is governmental First Amendment Rights apply, whereas at private institutions faculty do n ot have the same degree of protection. [BACK to document] 14. The court referred to: Millikan v. Board of Directors of Everett School Di strict No. 2 1980; Adams v. Campbell County School District 1975; Riggin v. Board of Trustees of Ball State University 1986. [BACK to document] 15. This course is sometimes labeled small group p rocesses, group communication, interpersonal interaction, or T-group. I have been teaching such a course for years. Most students tend to like th e course, because I teach it in a relatively nondirec tive, experiential manner, requiring two papers analyzing the group dynamics, not tests. Consequen tly I receive my highest student evaluations in this course. I once taught this course to students in a nursing program. Preferring more structure than many students, they did not like the course. I was not asked to teach the course again. It was taught thereafter in a lecture format in the nursin g department. This is most unfortunate for their future patients, as the course is a "practice" cour se in interpersonal skills. During the late 1960s and early 1970s, experiential group courses (some then called "encounter" or "sensitivity" groups) were objected to by some religious groups because some o f the courses are directed at affective, not just intellectual, change. This brings up the additiona l question of academic freedom involving instructional methods of faculty who teach courses that service the curricula of other departments. Who has the legitimate control of content and teac hing methods in service courses?


26 of 44 [BACK to document] 16. In arguing faculty rights, I am not suggesting unlimited rights. Just as in the legal concept of free speech, there are certain narrowly defined lim its, so too in the faculty right choose a teaching method there are limits. A recent issue of the Chronicle of Higher Education (1997, November 14) reports the case of a faculty who was dismissed bec ause of his teaching method. At least prima facially as described, this could be an example of the limits of faculty right to use whatever teachin g method s/he deems appropriate. [BACK to document] 17. For a more extended critique and criticism of Parate, Kaplin and Lee suggest: D. Sacken, "Making No Sense of Academic Freedom: Parate v. Isi bor," 56 West's Educ. Law Rptr. I IO7 (Jan. 4, 199O). [BACK to document] 18. For other nuances of court rulings on grading, see Susan M v. New York Law School 544 N.Y.S.2d 829 (N.Y. App. Div. 1989). A law student dismissed for inadequate academic performance sought judicial review of her grades in her constitutional law and corporations courses. The court said:At least when a student's very right to remain in s chool depends on it, we think the school owes the student some manner of safeguard against the po ssibility of arbitrary or capricious error in grading, and that, in the absence of any such safeg uards, concrete allegations of flagrant misapprehension on the part of the grader entitle t he student to a measure of relief [544 N.Y.S.2d at 831-32].The court then outlined the kind of review it belie ved to be appropriate. Had it been upheld on appeal, the outline would have subjected faculty re asoning processes in grading to judicial scrutiny. It said:At issue is not what grade petitioner should have r eceived but whether the grade received was arbitrary and capricious; not whether petitioner de served a C+ instead of a D in Corporations but whether she deserved a zero on this particular essa y; not the quality of petitioner's answer but the rationality of the professor's grading [544 N.Y.S.2 d at 832].The court returned the issue to the law school for further consideration, asking the school to provide reasonable assurance that the zero assigned on the student's essay was a "rational exercise of discretion by the grader" (544 N.Y.S.2d at 832). T he school appealed, and the state Supreme court unanimously reversed the appellate court, reinstati ng the trial court decision. The court strongly supported the academic deference argument made by t he school, stating:Because [the plaintiff's] allegations are directed at the pedagogical evaluation of her test grades, a determination best left to educators rather than th e courts, we conclude that her petition does not state a judicially cognizable claim [556 N.E.2d at 1105].After reviewing the outcomes in earlier challenges, the state's highest court stated:As a general rule, judicial review of grading dispu tes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional o r statutory violation, a student's challenge to a particular grade or other academic determination re lating to a genuine substantive evaluation of the student's academic capabilities, is beyond the scope of judicial review [556 N.E.2d at 1107].


27 of 44The court concluded that the claims concerned subst antive evaluation of academic performance, and therefore refused to review them.According to Kaplin and Lee (1995, see section 4.7. 1. Awarding of Grades and Degrees 473), students have not typically prevailed in challengin g grades. They suggest the following summary of legal challenges to academic judgments and a review of the Susan M case, see Note, "Student Challenges to Grades and Academic Dismissals: Are T hey Losing Battles?" 18 J. Coll. do Univ. Law 577 (1992). See also F. Faulkner, "Judicial Defer ence to University Decisions Not to Grant Degrees, Certificates, and Credit—The Fiduciary Alt ernative," 40 Syracuse L. Rev 837 (1990), and T.A. Schweitzer, 'Academic Challenge' Cases: Shou ld Judicial Review Extend to Academic Evaluations of Students?" 41 American U. L. Rev 267 (1992). Susan M is also humorously reviewed in verse by R.E. Rains in 40 1. Legal Educ 485 (1990) and 43 J. Legal Educ 149 (1993). [BACK to document] 19. Once again, when discrimination charges are a part of grading complaints, the courts engage in closer scrutiny of grading practices. See (Haskell 1997c) the section on Disparate Treatment and Disparate Impact. [BACK to document] 20. In William Sypher v. Vermont State Colleges Faculty Fe deration (1982), it was observed (9) with regard to the "political" aspect of the case t hat Sypher had written a letter in defense of his student rating level at the college. In it, he sai d "It is certainly distressing when very good is no t good enough, especially at a college with a modestl y-talented student body that often discourages efforts at subtlety, wit and deeper penetration of subjects." (10) The Board responded to this letter saying, "Other actions and statements by Grievant c onstituted legitimate reasons for not retaining him. In a May, 1980, letter to Dean Beston, Grieva nt expressed his contempt for Castleton students" (p.135), (11) concluding, "Accordingly, we find cre dible the College's contention that Grievant was not reappointed because of his teaching effectivene ss [Italics added] (p.135).V. In Lovelace v. Southeastern Massachusetts University (1986), the court said, (4) whether "a school sets itself up to attract and serve only the best a nd the brightest students or whether it instead gea rs its standard to a broader, more average population is a policy decision which, we think universities must be allowed to set....matters such as course co ntent, homework load, and grading policy are core university concerns" (p.424).In Robert Kramer v. The President of the University of British Columbia (1992), the Board said (30) "One perceptive student noted that some of the unha ppiness came from the fact that the levels of Japanese language ability were badly divided; some found it easy, others very hard" (p.12). [BACK to document] 21. See also Kaplin and Lee (1995), sections. 2.1, 2.2.1, 2.2.2, and 2.2.3. [BACK to document] 22. Interesting in this regard, recently (Strosnid er, 1996) two Pace University students sued the university on the grounds that because the course w as too difficult they had to drop it, and therefore they should not have to pay for it. The judge who initially heard the suit found in favor of the students, awarding each of them $2,065.31 for the t uition they had paid, plus damages. An appellate court overturned the decision, ruling that the lowe r-court judge had "improperly engaged in judicial evaluation of a course of instruction that the cour ts of this state have consistently held is the prop er domain of educators and educational institutions en trusted to the task." What is interesting in terms of this paper is that the Pace university spokesper son was quoted as saying the importance of the case was that it had to do with the ability of faculty members to ru n a class in the manner they feel appropriate [italics added]. [BACK to document]


28 of 4423. In one classic and contemporary academic freed om statement (Morrow, 1968), it was noted that "legal control is usually vested in a non academic board, council, or court, distinct from the faculti es of the institutions. Although their control is leg ally unlimited, these boards are subject to the restraint of public opinion, of academic custom and precedent, and of accrediting bodies and professional organizations" (p.6) Morrow also notes Academic freedom, in its primary sense, is the free dom claimed by a college or university professor to write or speak the truth as he sees it without fear of dismissal by his academic superiors or by authorities outside his college or university. In a secondary sense, the term denotes the corporate freedom claimed by an institu tion of higher learning to determine its policies and practices, without restraint from outs ide agencies. This latter usage is clearly distinc t and derivative; for such corporate autonomy derives its justification ultimately from the services performed by the scholars whose activity it exists to foster and protect, while, on the other hand, the freedom of the individual scholar often require s protection from the pressures of his own institution, as well as from outside forces (p.4). [BACK to document] 24. I was unable to determine from national unions what percentage of contracts preclude the administrative use of SEF. Perhaps others will be more successful in locating this information. It i s important information because the false belief by m any administrators and faculty that nearly all schools use SEF administratively is part of what ma intains the practice and inhibits change. As I indicated in Haskell (1997c, endnote # 17), some sc hools (a) do not mandate SEF, (b) do not require its administrative use, or (c) constrain its use in various ways. For example, at the University of Guam (Blum D. E.,1990, October 3), an arbitration b oard ruled that SEF should not be used unless (1) students are made aware of the purpose and rami fications of their evaluations, and (2) that evaluations should not be anonymous. A Rider Unive rsity, the faculty agreement stated "The College may not use course evaluations for purposes of discipline, promotion, or tenure, unless introduced for such purposes by the faculty member. At Western Michigan University, the faculty agreement stated "Only the ratings shall be include d in all promotion, reappointment, merit, and tenure recommendations, together with such other ev aluations of teaching competence as may be employed by faculty members and made available. We stern agrees to consider all the evidence of teaching competence that is presented in evaluating teaching faculty and shall not use unsubstantiated structured comments in personnel de cisions." I have also been informed by a colleague at St. John's University (New York) that, while SEF is required, it is not used administratively (though this may be changing). I suspect there are many more schools (likely those who have union contracts) that do not use SEF admin istratively or who limit its use. [BACK to document] 25. I would like to thank AAUP attorney Patrick B. Shaw for referring me to Ms. Linda Lott, Administrative Coordinator, Hofstra Univeristy Chap ter, AAUP, who conducted a search of the new collective bargaining contract database (March 21, 1997). Searching the database was conducted with "several key words that relate to academic fre edom, teaching methodology and student evaluations. Virtually no contract was found that specifically dealt with faculty right to set course content and teaching methods. I also would like to thank Ms. Maureen Webb, attorney for the Canadian Association of University Teachers (CAUT) for her assistance. [BACK to document] 26. Cited in Grievance of William Sypher and the Vermont State C olleges Faculty Federation 5 VLRB 102 (1982) (p.125). Knapper (1977) notes an ea rly


29 of 44attempt to provide safeguards for the use of evalua tion data was made by a committee on evaluation established by the University of Ottawa, whose report is well worth reading (University of Ottawa, 1974). The committee recommendations al low for confidentiality of data, and consultation with the faculty member on the criteri a to be used in assessing his performance. Faculty must be given due notice of any unfavourab le assessments, and an opportunity to comment and demonstrate improvement before any info rmation is passed on to their administrative supervisor. They must also be kept informed of evaluation information placed in their file, and student comments will only be place d in the file if the students have taken up complaints directly with the instructor first. Fin ally, there is provision for an appeal procedure (p.202). [BACK to document] 27. The 1973 AAUP report on faculty tenure notes, "The faculty of the institution...must be the source for the definition and classification of sta ndards of professional conduct and must take the lead in ensuring that these standards are enforced. ...[and] accept their full corporate responsibility for the integrity of the profession" [BACK to document] 28. John Dewey, (1976, orig 1902) wrote in this re gard,Implicit, if not explicit, obligations are assumed. In this situation, conflict between the two concerns of the university may arise; and in the co nfusion of this conflict it is difficult to determine just which way the instructor is morally bound to face. Upon the whole it is clear however....We can insist upon one hand that the ind ividual must be loyal to truth, and that he must have the courage of his convictions; that he must n ot permit their presumed unpopularity, the possibly unfavorable reaction of their free express ion upon his own career, to swerve him from his singleness of devotion to truth (p.54). [BACK to document] 29. In Robert Kramer v. The President of the University of British Columbia (1992), it was noted that (2) The department head viewed Kramer's 1989-9 0 course evaluations "with some alarm" and that a number of students had stated that Dr. Krame r's teaching would cause them to stay away from the Asian Studies department, and (6) since the cou rse was the general introduction to the subject and the Department, such negative comments were of great concern to the department head. [BACK to document] 30. The Harvards, Dukes, Yales, Stanfords, and pop ular media---as indicated in one popular book entitled Profscam (Sykes, 1988)---notwithstanding, most faculty, as numerous national surveys document, do not spend the majority of their time o n research as apposed to teaching. It seems to be a failure of proportional reasoning and judgement t hat on many campuses and at many conferences on higher education that research is increasingly d evalued by calling fourth as the justificatory example faculty at mega research universities who s pend reduced time teaching, thereby suggesting that most faculty in the teaching trenches are not primarily concerned with classroom teaching. In addition, faculty and administrators at small colle ges often justify, and indeed discourage research by pointing to the literature on the "over emphasis on research using mega research universities as the examples, as if the same logic applied to them. [BACK to document] 31. It is telling, I think, that the court should take objection to this faculty member's assessment of the level of student ability in his classes.


30 of 44 [BACK to document] 32. I am not implying that administration is the bad guy" and faculty is the "good guy." Reality is not that simple. As I have stated previously, "Thi s is not intended as a blanket apologia for academia. There are many problems within the acade my. In many other areas, I am a severe critic of my colleagues collective behavior" (Haskell, 199 7a, endnote 4). In fact, faculty are in considerable measure collectively responsible for t he current state of affairs regarding grade inflation and lowered standards. It is no secret t hat, historically, faculty on college campuses have tended to be disorganized, and that this disorganiz ation has contributed to loss of control over standards (see for example Grose, 1997; Power, 1997 ; Shattuck, 1997). In a similar context, Scriven (1996) in his provocatively entitled article, "The Treason of the Intellectuals," has lamented, "Disciplined inquiry should begin at home, and it i s a wretched commentary on academic intellectuals that they have been unwilling to appl y it to the very activity that earns them a living and made them capable of earning that living." Faculty must do more than complain. Given this, administrators are subjected to a different reward system than are faculty. They are rewarded for enrollments and constructing new facilities, with t he latter requiring the former. [BACK to document] 33. Indicative of the interpretation of SEF remark s and their administrative use, on one recent professional Internet discussion group, a faculty m ember offered his particular experience, noting that student comments can be used for any purpose. One student commented he was so brilliant that he should quit teaching at the undergraduate level and teach graduate school. The administration interpreted the student's comment to mean that the faculty was not doing a good job, that the comment meant that he was talking over their heads (Due to privacy issues I will not cite the Listserv. I will privately provide the URL upon re quest). [BACK to document] 34. More strictly speaking, in discrimination case s, courts apparently do begin by trusting universities. They set aside this trust only after a plaintiff has succeeded in proving a prima facie case of discrimination. Similarly, if a plaintiff can make a prima facie case regarding, say, a free speech violation or a due process violation in a pe dagogy or academic standards case, the courts would also apparently set aside their trust. Once more I am indebted to Bill Kaplin (personal communication, October, 6th, 1997) for his legal ex pertise. While professor Kaplin is undoubtedly correct, in my view with respect to the specific SE F cases reviewed in this series of articles, it cou ld reasonably be concluded that the courts require mor e evidence to establish a prima facie case than with discrimination cases. [BACK to document] 35. In a recent and ongoing denial of tenure on th e basis of SEF, an attorney reviewing the findings summarized the case by saying "that in this case th e student evaluations were almost uniformly unfavorable and were relied upon heavily by the Uni versity to justify the denial of tenure ( The University took the view that students were custome rs of the University ). Based on the student evaluations and the high failure rates in the profe ssor's courses, the University alleged that he was a poor teacher because he pitched his engineering cou rses at too high an academic level, put too great an emphasis on mathematics, and taught at too fast a pace. Our argument was that it was within the professor's academic freedom to choose the content, emphasis and pace in a course within the parameters of international and national standards [which were provided by expert testimony] the course outline approved by Senate and the prerequis ites for the course. To support the argument we pointed to the Faculty Handbook, which gave a broad guarantee of academic freedom" (italics added). One campus advertises with the slogan "Your Success Is Our Business." See [BACK to document]


31 of 4436. One court judge noted ( EEOC V. Franklin & Marshall College 1985) "I do not agree with the majority's assumption that academic institutions ar e the same as any other employer. At least insofar as their administrative and governance structures a re concerned, colleges and universities differ significantly from garden variety private employers In the context of application of the provisions of the National Labor Relations Act the Supreme Cou rt has counseled that principles developed for use in the industrial setting cannot be ‘imposed bl indly on the academic world.'" NLRB v. Yeshiva University 444 U.S. 672, 681, 100 S.Ct. 856, 861, 63 L.Ed.2d 115 (1980) p.120. [BACK to document] 37. McMurtry delineates the inappropriate use of t he consumer metaphor in education.The best product on the market, as we know, is the one which is the most 'problem-free' for its purchaser--delivered ready made for instant easy us e','guaranteed replacement' if it does not work, and 'repaired cost-free' whenever it needs maintena nce attention. The best education, on the other hand, is the opposite on all standards of excellenc e. It cannot be produced or delivered by another at all, is never ready-made nor instant, and cannot be guaranteed replacement or service cost-free if it is not working. The higher the standards it has, the less it can be immediate in yield, the mor e work it demands of its owner, and the more its fail ures must be overcome by its possessor's own work. An education can never be 'problem free', an d poses ever deeper and wider problems the higher the level of excellence it achieves. Freedo m in the market is the enjoyment of whatever one is able to buy from others with no questions as ked, and profit from whatever one is able to sell to others with no requirement to answer to anyone e lse. Freedom in the place of education, on the other hand, is precisely the freedom to question, a nd to seek answers, whether it offends people's self-gratification or not....What is the best polic y for buying a product--to assert the customer's claim ‘as always right'--is the worst possible poli cy for a learner. What is the best policy for selling a product--to offend no-one and no vested i nterest--maybe the worst possible policy for an educator. The principles of freedom here are contr adictory, and become the more so the more each is realized (p.213-214). [BACK to document] 38. In Morrow's (1968) classic statement, he says,An ordinary citizen who expresses unpopular opinion s may lose customers if he is a merchant, clients if he is a lawyer, patients if he is a phys ician, advertisers or subscribers if he is the edit or of a newspaper, or suffer other forms of social or eco nomic penalty resulting from disapproval of his expressed opinions. The university professor, in s ome degree, suffers similar consequences; but where academic freedom is recognized, he is protect ed from the gravest of them, namely, the loss of his position. The justification of academic fre edom must therefore be sought in the peculiar character and function of the university scholar (p .6). [BACK to document] 39. In this regard, Dewey recognized very early on (1976, orig. 1902):A new type of college administration has been calle d into being by the great expansion on the material side. A ponderous machinery has come into existence for carrying on the multiplicity of business and quasi-business matters without which t he modern university would come to a standstill. This machinery tends to come between t he individual and the region of moral aims in which he should assert himself....Now the need for money is not in itself external to genuine university concerns; much less antagonistic to them The university must expand in order to be true to itself, and to expand it must have money. The danger is that means absorb attention and thus possess the value that attaches alone to the u ltimate educational end. The public mind gives


32 of 44an importance to the money side of educational inst itutions which is insensibly modifying the standard of judgment both within and without the co llege walls (p.62-63). [BACK to document] 40. It is unfortunate with regard to this issue th at both ideology and politics have reached the leve l where views are automatically labeled "liberal" or "conservative." Since the publication of my first SEF article, I have been called an "arch conservati ve" by some of my colleagues. I have always thought of myself as a "liberal," though on academi c matters I am perhaps more conservative than liberal. (See also Peter Sacks' book for his respo nse to being similarly labeled). Not only are thes e labels too simple, but also such labels preclude ad dressing the issues involved. [BACK to document] 41. Given the current political climate and some r esponses to this series of articles (see endnotes # 2 & 3), it is perhaps necessary to clearly state that the discussions around grade inflation and lowered admissions standards are not meant as "code words" for blaming minorities as one Harvard professor has explicitly voiced (Mansfield, 1993). The argument is that professors tend to "overgrade" all students in order to justify and ob scure their "overgrading" of black students. Even on the general face of it, this does not seem a val id cause of any grade inflation or lowered admissions standards. The argument assumes that th e academic level of black students is lower ( a la the "Bell Curve" or lack of academic preparation?) than that of white students. For the sake of this argument only let's assume that blacks on a group average do show lower ability than whites. I don't think this would make one iota of difference in the grade inflation problem. This is why: First faculty do not just have to obscure the overgrading of blacks. The wholesale lowering of admission standards across the country forces overgrading to be an equal opportunity system---and mostly for whites. Blacks are simply swooped up in the more g eneral admissions and grading inflationary situation that admits very low level white students Second (and again even for the moment assuming the average lower level of black students) we know that---just as with whites---many of the black students are of high quality, which would argue against their assumed contribution to grade inflation. It is interesting that the Harvar d professor did not say that grades were being inflated because of giving blacks higher grades, bu t because the lower academic level of black students are forcing faculties to grade everyone hi gher in order to hide the "fact" that professors ar e forced to pass black students. This is a slightly more sophisticated argument than the typical one that simply states that grades are being inflated b ecause of having to give passing grades to blacks. But many people will probably not catch this disti nction. The Harvard professor apparently knows that the simple argument that grades are being infl ated simply because of having to give passing grades to blacks will not past musters because, thi rd, given the small number of blacks in higher education, any assumed contribution by blacks to gr ade inflation and lowering of standards, renders any consequent rise in grades due to black admissio ns an imperceptible blip on the inflated grading curve. Finally, to blame blacks for grade inflatio n, doesn't address the more obvious fact of grade inflation on campuses without any black students. [BACK to document] 42. The University of Washington was reportedly ch ided by an accrediting agency because 70 per cent of the grades were As or Bs, up from 60 per ce nt in 1983 ( Shea,1994). On many campuses the average grade is now an Aor B+. Evidence of grad e inflation is indicated by the population of students since 1987 with A plus, A, and A minus gra de-point averages having increased from 28% to 37%, while at the same time SAT scores have decr eased an average of 13 points on verbal (but only 1 point on math). The average for all SAT tak ers is 3.22 on a four-point scale, a considerable increase above an average of 3.07 in 1987. The con tinuing attempt to curb grade inflation by a Duke University faculty who developed a grade-adjustment algorithm is now likely, with other schools


33 of 44about to adopt the system (see The Chronicle of Higher Education (1997, September 26). [BACK to document] 43. One student writer went so far as to say, "We therefore suggest a boycott of the 1995 student/teacher evaluations. This boycott will pro vide a more effective means of communication than anything written on the evaluation itself. So mething must be done about the trend of grade inflation. We as students refuse to contribute to the downfall of academia (Stern and Flynn, 1995). [BACK to document] 44. It should go without saying that not all stude nts are the same. SEF vary by maturity, and intellectual level, i.e., graduate student evaluati ons v. undergraduate (See, Divoky and Rothermel, 1988; Dilts, Samavati, Moghadam, and Haber, 1993), and therefore probably by campus and program. This may account in part for some of the wide variation in faculty attitudes toward SEF. [BACK to document] 45. Some colleges count these remedial courses in the total number of credits required to graduate, thus further lowering the standards of the college degree. In terms of student ability and admissions standards, some data suggest that many college intr oductory text books have lowered their reading level from a grade 15 level (from 30 years ago) to about grade 11 reading level (presumably the reading ability of an 11th grade student. As measu red by the Iowa Silent Reading Test, on some 4-year college campuses 23% of freshman are functio nally illiterate independently reading at or below a 5th grade level. [BACK to document] 46. Visit just about any World-Wide Web Listserv d iscussion group by academics. The membership of these Listserves are often a cross se ction of faculty experience with student abilities and expectations within a discipline. See what man y of the contributors to these discussion groups relate about their experiences with student expecta tions and behavior in the classroom. [BACK to document] 47. A former law student from Duquesne University who was unable to achieve a B average filed suit charging that the school's grading policy cons tituted breach of contract. The suit contended tha t she had not been able to maintain the required 2.97 5 grade-point average, due to a new grading policy. The policy requires that not more than 30 % of students in a course can receive As and no more than 40% are to receive Bs. While newly enfor ced, the policy has existed for 20 years. A Duquesne official said. "It's a bell curve...There 's no doubt about that" ( The Chronicle of Higher Education (1997, September 12). One can seriously wonder if most psychometricians would call 70% As and Bs a bell curve. [BACK to document] 48. Once again, I do not see this as basically a s tudent problem; neither is it essentially a teacher problem, though these are all variables. The probl em is a sociocultural one. To some degree, the problems is also a legal one. Faculty and administ rators are perhaps overcautious in demands so as to avoid law suits. The question is, given the low ered admission standards and the above student characteristics, is it still possible to teach anyt hing other than the "headlines" of a subject in a course? Is it possible to still teach the subtleti es and the nuances of reasoning that are required t o understand a subject matter? [BACK to document] 49. See the recent American Psychologist that devoted a special section for SEF articles. Greenwald, 1997; Greenwald and Gillmore, 1997; d'A pollonia, and Abrami, 1997; Marsh, and Roche 1997; McKeachie, 1997. [BACK to document]


34 of 4450. See also Haskell, (1997c) section on: Assumption # 2: Statistical Significance of SEF of Teaching Effectiveness Measures Appropriate Learnin g. [BACK to document] 51. See particularly section 1.3.3. The Role of Ca se Law for Kaplin and Lee's historical view of the relation between legal rulings on the elementary, s econdary, and higher education levels. [BACK to document] 52. It seems to be virtually unnoted that higher e ducation has been uncritically transferring researc h findings and teaching methods originally designed f or elementary and secondary levels to the college classroom. With exceptions like McKeachie and associates (1986) at the University of Michigan, there has not been a great deal of resear ch with college level students (learning disabilities, so-called learning styles, etc, notwi thstanding). The question is, how appropriately ar e finding from elementary and secondary education tra nsferred to higher education? The answer, of course, depends on ones view of education (see Hask ell, 1997c, section Assumption # 2: Statistical Significance of SEF of Teaching Effectiveness Measu res Appropriate Learning ). Many faculty believe that just as we have devalued the high scho ol diploma, so are we now doing to the four-year college degree. [BACK to document] 53. While it is not encouraging to contemplate, fo r years it has been known that the general academic quality of those enrolling in teacher educ ation programs in the U.S. is lower than that of students enrolled in other university programs (Rey es, 1987, p. 18). In addition, it has been suggested for some time that the level of cognitive or mental development of the U.S population, from tests based on the work of the developmental p sychologist, Jean Piaget, that about 50% of the U.S. population, including freshman and sophomore c ollege students---and especially those entering teacher education programs---fail to function at a formal operational stage of reasoning, remaining at the concrete operational stage (e.g., Long, McGrary and Ackerman, 1979; Shyers and Cox, 1978; see also Stone, 1996). [BACK to document] 54. The pressure faculty feel is considerable. I personally recall a situation a number of years ago where a faculty (an ex priest) applying for full pr ofessor was caught changing the scores on his student evaluations. [BACK to document] 55. University of Wisconsin : In another ruling, the Chancellor at the Universi ty of Wisconsin refused to release SEF, citing a statute that disal lows personnel evaluations from being released to public view. Students took the chancellor to court However, after being advised by the state's Attorney General, citing Wisconsin's open-records l aw, the University of Wisconsin's campus released SEF to the public. Both the student and f aculty senates passed resolutions in support of the Chancellor's refusal, and the university's lawyer c oncurred. Despite these resolutions, the Attorney General disagreed, writing that "the requested reco rds are public records and the University's stated reasons for withholding access do not outweigh the public interest in the records" ( Chronicle of Higher Education 1994a, 1994b). University of Idaho : A legal ruling, cited on the World Wide Web site of the Topical Interest Group: Assessment in Higher Education (Evaluating teacher evaluations, 1996), notes that the University of Idaho also recently went to court ove r the issue of whether SEF can be published. The student newspaper initiated a lawsuit when it was r efused access to SEF for publication. The legal question was whether SEF is protected under privacy rights by the Idaho Code. In a ruling that seems to strain logical credulity, the court ruled that since the University did not consider students as


35 of 44the general public, the University was not breaking the law by allowing students access to the evaluations. Further, the opinion of the court was that according to state law, teacher evaluations a re not protected as part of personnel records. [BACK to document] 56. Many faculty are not aware of the extent of th e confidentiality of student information. For example, (1) student scores or grades cannot be pos ted publicly by name, social security numbers, or any other identifier that can be known by anyone ex cept the instructor and student; (2) student papers or lab reports that have names and grades on them cannot be left in places that are accessible to others; (3) students may not have access to othe r students grades in a class, (4) faculty are not t o request student information without a legitimate ed ucational reason; (5) student grades or other educational information may not be shared with othe r faculty members unless the faculty has a specific legitimate reason to know; (6) libraries a re apparently prohibited from revealing to instructors what students have read the course read ing material that the instructor has specifically put on reserve in the library for students to read; (7) student grades or other educational informatio n can not even be revealed to the parent of the stude nt (who may be paying for the student's education) without written permission of the student. There ar e many other restrictions as well. [BACK to document] 57. According to Black's Law Dictionary (1990), libel includes.A method of defamation expressed by print, writing, pictures, or signs. In its most general sense, any publication that is injurious to the reputation of another. A false and unprivileged publication in writing of defamatory material....which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule.... to degr ade him in the estimation of the community, to induce evil opinion of him in the minds of right th inking persons, to make him an object of reproach, to diminish his respectability or abridge his comforts, to change his position in society for the worse, to dishonor or discredit him in the estimation of the public, or his friends and acquaintances, or to deprive him of friendly interc ourse in society, or cause him to be shunned or avoided....Almost any language which upon its face has a natural tendency to injure a man's reputation, either generally or with respect to his occupation. [BACK to document] 58. I would like to make it very clear that I am n ot against mass higher education. I am a product o f it. I had to begin my educational career at commun ity college as, unlike today, no 4-year college would admit me. So, I am not an elitist who is aga inst expanding the boundaries of higher education. The basic difference between then and n ow, however, is that after being admitted traditional standards were upheld. [BACK to document] 59. See for example, June 9, 1997. [BACK to document] 60. See my section on "Faculty Complicity in Adapt ation to SEF" in Haskell ( 1977a ). In one case, Kaplin and Lee (1995, Sec. 3. 7.) note "The Court a lso found that the state's entire system of "intricate administrative machinery [was] a highly efficient in terrorem mechanism.... It would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machi nery....The result may be to stifle 'that free play of the spirit which all teachers ought especially to c ultivate and practice.'" [BACK to document] 61. Recently, a group of college and university pr esidents proposed that faculty input into decisions


36 of 44 be reduced. The commission's 50-page report, Renewing the Academic Presidency: Stronger Leadership for Tougher Times makes recommendations to presidents, professors, t rustees, and public officials. Copies may be obtained from the Association of Governing Boards of Universities and Colleges, One Dupont Circle, Suite 400, Washing ton 20036 ( Leatherman, 1996b). [BACK to document] 62. Some studies suggest that younger faculty do n ot seem to be as concerned with the complex issues revolving around SEF and tenure. See Kolevz on (1981), Avi-Itzhak and Lya (1986), Leatherman, 1996). I would suggest that many young er faculty have not been appropriately socialized into the academic profession with its ri ch heritage, culture and norms. As off-campus programs and distance learning increase, so will be ing socialized into the profession likely to furthe r decrease. [BACK to document] 3. A review of the grade inflation literature clea rly shows that at perhaps the majority of instituti ons, Cs exist only minimally, with Ds and Fs nearly none xistent. [BACK to document] ReferencesAAUP (1975). Committee CAbrami, P.C. (1989). How should we use student rati ngs to evaluate teaching? Research in Higher Education 30 (2). 221-27. Academe: Bulletin of the American Association of Un iversity Professors (1997, May/June). 83 (3). Adelman, C. (1996, October 4). The truth about reme dial work. Chronicle of Higher Education A56.American Federation of Teachers (1996, February 15). A system of high standards: what we mean and why we need it. Executive Council Report. [Avai lable online] ms=system,high,standard#NSFIRSTTERM American Psychological Association Monitor (1994, November). Can universities be liable for incompetent grads? 7 Avi-Itzhak, T., & Lya K. (1986). An investigation i nto the relationship between university faculty attitudes toward student rating and organizational and background factors. Educational Research Quarterly 10 31-38. Bauer, H.H. (1996). The new generations: Students w ho don't study (prepared for the symposium, "The Technological Society at Risk" Annual Meeting, AOAC International, Orlando (FL), 10 September 1996). Email for a copy of the article. Black's Law Dictionary (With Pronunciations Sixth Edition (1990). St. Pau l, Minn.: West Publishing.Blum, D. (1992, November 4). U. Professors urge hig her admissions standards. The Chronicle of Higher Education A32. Brimelow, P. (1996, April 22). Devalued diplomas. Forbes


37 of 44Carley V. Arizona Board of Regents 737 P.2d 1099 (Ariz. App. 1987). Chatterley, L.J. & Peck, D.M. (1995). We're crippli ng our kids with kindness!! Journal of Mathematical Behavior 14 429-436. Copeland, J.D., & Murry, J. W., Jr. (1996). Getting tossed from the ivory tower. Missouri Law Review 61 233-327. Crumbley, L. (1996). Due process/defamation issues [Not to be construed as legal advice] Society for A Return to Academic Standards [Available online] Crumbley, L.D., & Fliedner, E. (1995). Accounting a dministrators' perceptions of student evaluation of teaching (set) information. Manuscript, Department of Accounting Texas A&M University. Damron, J.C.(1995). The three faces of teaching eva luation. See also Damron, J.C. (1996). Instructor personality and the politics of the clas sroom. Manuscript, Douglas College New Westminster, British Columbia, Canada V3L 5B2. (Ear lier Version Faculty Matters, June 1994, (No. 5, Pages 9-12) and Update September, 1994 (The Newsletter of the Okanagan U niversity College Faculty Association). [Available online] at ics.html Dewey, J. (1976). Academic freedom. In John Dewey: The Middle Works 1899-1924. (pp. 53-56) Carbondale: Southern Illinois University Press. [Or iginally published in Educational Review 23 1902, 1-14]DiBona v. Matthews 269 Cal. Rptr. 882 (Cal. Ct. App. 1990). Dilts, D.A., Samavati, H., Moghadam, M.R., & Haber, L.J. (1994). Student evaluation of instruction: Objective evidence and decision making Journal of Individual Employment Rights 2 73-86.Divoky, J.J., & Rothermel, A. (1988). Student perce ption of the relative importance of dimensions of teaching performance across type of class. Educational Research Quarterly 1 40-45. d'Apollonia, S. & Abrami, P.C. (1997). Navigating s tudent ratings of instruction. American Psychologist 52 1198-1208. EEOC V. Franklin & Marshall College No. 84-1739, United states court of appeals for t he third circuit, 775 F.2d 110; 3 Fed. R. Serv. 3d (Callagha n) 282; 85 A.l.r. Fed. 669; 39 Fair Empl. Prac. Cas. (Bna) 211; 38 Empl. Prac. Dec. (Cch) P35,644, August 5, 1985, Argued, October 21, 1985, Decided.Evaluating Teacher Evaluations (1996). Article in the topical interest group: Ass essment in higher education submitted by o n 11/12/96. [Available online] Fighting grade inflation. (1994, May 27) Science 264 1255. Furedy, J. (1995). Academic freedom, opinions and a cts: The voltaire-mill perspective applied to current Canadian cases. Univ. of New Brunswick Law Journal 44 131-4.


38 of 44Gold, J.J. (1997, September 12). The visiting profe ssor: Student evaluations deconstructed. The Chronicle of Higher Education B8. Goldman, L. (1993, Spring). On the erosion of educa tion and the eroding foundations of teacher education. Teacher Education Quarterly 20 57-64. Gordon, C., Hartigan, P, & Muttalib, N. (1996, Nove mber 22). Developmental learning at four-year colleges. The Chronicle of Higher Education [Available online] Gose, B. (1997, July 25). Efforts to curb grade inf lation get an F from many critics. The Chronicle of Higher Education A41. Greenwald, A.G. (1997). Validity concerns and usefu lness of student ratings of instruction. American Psychologist 52 1182-1186. Greenwald A.G. & Gillmore, G.M. (1997). Grading len iency is a removable contaminant of student ratings. American Psychologist 52 1209-1217. Griggs v. Duke Power Co. 401 U.S. 424 (1971). Guernsey, L. (1996, October 24). Remedial courses a re widespread at American colleges, report says. The Chronicle of Higher Education A8. Hamilton, N.W. (1997, May/June). Peer review: The l inchpin of academic freedom and tenure. Academe: Bulletin of the American Association of Un iversity Professors 83 (3), 15-19. Haskell, R.E. (1997a). Academic freedom, tenure, an d student evaluations of faculty: Galloping polls in the 21st century. Educational Policy Analysis Archives 5 (6). [Available online] Haskell, R.E. (1997b). Abridgement of academic free dom, promotion, reappointment and tenure rights by the administrative use of student evaluat ion of faculty: (Part II) Views from the court. Education Policy Analysis Archives 5 (6). [Available online] Haskell, R.E. (1997c). Academic freedom, promotion, reappointment, tenure and the administrative use of student evaluation of faculty (SEF): (Part I II) Analysis and implications of views from the court in relation to accuracy and psychometric vali dity. Education Policy Analysis Archives 5 (6). [Available online] Haskell, R.E. (1997d). Commentary: On Michael Theal l's (and implied et al.) "A reply to Haskell and to Stake." Educational Policy Analysis Archives 5 (8). [Available online] Heller, S. (1986, December 17). Proper use of stude nt evaluations at issue in professor's legal appeal to regain job. The Chronicle of Higher Education p. 14. Husbands, C., & Fosh, P. (1993). Student's evaluati on of teaching in higher education: Experiences from four European countries and some implication o f the practice. Assessment & Evaluation on Higher Education 18 95-114. Hertling, J. (1996, November 22). Education's growt h in Hong Kong raises concern over quality.


39 of 44The Chronicle of Higher Education A39. Kaplin, W.A., & Lee, B. (1995). The law of higher education: A comprehensive guide to legal implications of administrative decision making (3rd Ed). San Francisco: Jossey Bass. Keyishian v. Board of Regents 385 U.S. 589, 604 (1967). Knapper. C.K. (1977). Teaching evaluation and acade mic freedom. In C. Knapper, G. L. Geis, C. E. Pascal, and B. M. Shore (Eds.), If Teaching Is Important ...: The Evaluation of Ins truction in Higher Education (pp. 193-203). Toronto: Clarke, Irwin & Company, in association with the Canadian Association of University Teachers,Kolevzon, M.S. (1981). Grade inflation in higher ed ucation: A comparative study. Research in Higher Education 15 195-212. Lambert, C. (1993, May/June). Desperately seeking s umma. Harvard Magazine 36-40. Lansdale v. Tyler Junior College 470 F.2d 659 (5th Cir. 1972). Leo, J. (1996, September 16.). No books, please; We 're students. US News and World Report Lasch, C. (1979). Schooling and the new illiteracy (Chapter Six). In The culture of narcissism: American life in an age of diminishing expectations New York: Warner Books. Leatherman, C. (1996, October 25). More faculty mem bers question the value of tenure. The Chronicle of Higher Education p. A12. Leatherman, C. (1996b, September 13). Commission re commends strengthening college presidents' power. The Chronicle of Higher Education A43. Long, H.B., McGrary, K., & Ackerman, S. (1979). Adu lt cognition: Piagetian based research findings. Adult Education 30 3-18. Lovejoy, A. O. (1937). Academic freedom. Encyclopedia of the Social Sciences (ed.), E.R.A. Seligman. New York: Macmillan.Lovelace v. Southeastern Massachusetts University 793 F.2d 419 (1st Cir.1986). Magner, D.K. (1995, May 19). Mid-semester removal o f professor roils University of Montana. The Chronicle of Higher Education p. A25. Mansfield, H.C. (1993, March 31). Harvard boils ove r article on grade inflation and race. The Chronicle of Higher Education A27. Marsh, H.W., & Roche L.A. (1997). Making students' evaluations of teaching effectiveness effective: The critical issues of validity, bias an d utility. American Psychologist 52 1187-1197. May, H. (1996, August 16). Ex-students sue universi ties over quality of education. The Chronicle of Higher Education A29. [Available online] ir/issue-49.dir/49a02901.htm McKeachie W.J. (1997). Student ratings: The validit y of use. American Psychologist 52 1218-1225.


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41 of 44Shattuck, R. (1997,July 18). From school to college : We must end the conspiracy to lower standards. The Chronicle of Higher Education B6. Shea, C. (1994, January 5). The subtleties of grade inflation students are said to desert the sciences in favor of easy grades in humanities. The Chronicle of Higher Education A45. Shyers, J., & Cox, D. (1978). Training for the acqu isition and transfer of the concept of proportionality in remedial college students. Journal of Research in Science Teaching 15 (1), 25-36. Simon, W.E. (1996, March 19). The dumbing down of h igher education. Wall Street Journal State Board for Community Colleges and Occupational Education v. Olson (1984). Stern, J., & Flynn, P.D. (1995, Feb 20). Students p ropose a course of action for grade inflation. The Bucknellian [Available online] ps/4165.html Stake, J.E. (1997). Response to Haskell: Academic f reedom, tenure, and student evaluations of faculty. Educational Policy Analysis Archives 5. [Available online] Stedman, L.C. (1996). The achievement crisis is rea l: A review of the manufactured crisis. Education Policy Analysis Archives [Available online] Stichler, R.N. (1997, May/June). Academic freedom a nd faculty responsibility in disciplinary procedures. Academe: Bulletin of the American Association of Un iversity Professors 83 (3), 20-22. Stone, J.E. (1996). Developmentalism: An obscure bu t pervasive restriction on educational improvement. Education Policy Analysis Archieves 4 (8) [Available online] Stone, J.E. (1995). Inflated grades, inflated enrol lment, and inflated budgets: An analysis and call for review at the state level. Education Policy Analysis Archives 3 (11) [Available online] Strosnider K. (1996, December 6). Court orders stud ents who dropped a course to pay for it. The Chronicle of Higher Education A56. [Available online] Summerville, R.M., et al. (1990). Grade inflation: The case of urban colleges and universities. College Teaching 38 (1), 33-38. Sunstein, C.R. (1996). Academic freedom and law: Li beralism, speech codes and related problems. In Menand, L. (Ed.), The Future of Academic Freedom (pp.93-118) Chicago: University of Chicago Press.Sykes, C.J. (1988). Profscam: Professors And The Demise Of Higher Educa tion Washington, D.C.: Regnery GatewayTheall, M. (1997). On drawing reasonable conclusion s about student ratings of instruction: A reply to Haskell and to Stake. Educational Policy Analysis Archives 5 (8). [Available online] The Chronicle of Higher Education (1991, January 16). SAT's better freshman predict or than


42 of 44 grades. A35. The Chronicle of Higher Education (1997, August 8). Critics of SAT and ACT hail dec line in colleges that use them. A41.The Chronicle of Higher Education (1997, September 12). Former Duquesne law student sues over grade curve. A13.The Chronicle of Higher Education (1997, September 26). The controversial plan to c urb grade inflation at Duke University is back. Section: Note book. A46. The Chronicle of Higher Education (1997, November 14). A professor's personal teach ing style wins him praise and costs him his job. A12Trotter, B. (1977). The teacher and the goals of th e university. In C. Knapper, G. L. Geis, C. E. Pascal, & B. M. Shore (Eds.), If Teaching Is Important ...: The Evaluation of Ins truction in Higher Education (pp. 150-158). Toronto: Clarke, Irwin & Company, in association with the Canadian Association of University Teachers.Trout, P.A. (1997, Oct). What the numbers mean prov iding a context for numerical student evaluations of courses. Change: The Magazine of Higher Learning 29 5, 25-30. University of Michigan. (1994, Dec 12). Toward a de finition of tenure. Senate Advisory Committee on University Affairs Standing Subcommittee on Tenu re Endorsed Unanimously by the University of Michigan Senate Assembly. [Available online] University of Idaho: A legal ruling, cited on the W orld Wide Web site of the Topical Interest Group: Evaluating Teacher Evaluations (1996). Article in t he Topical Interest Group: Assessment in Higher Education submitted by o n 11/12/96. [Available online] uatingteacherevaluations.html Walker, D. (1992, October 14). British universities urged to shun remedial courses. Chronicle of Higher Education [Available online] Weeks, K. (1988). Student evaluations of faculty an d the legal context. Lex Collegii 11 (Winter). William Sypher v. Vermont State Colleges Faculty Fe deration (1982). 5 VLRB 102. Williams, W.M., & Ceci, S.J. (1997, October) How'm I doing? Problems with student ratings of instructors and courses. Change: The Magazine of Higher Learning 29 5, 13-23. Winston, G.C. (1997, October). Why can't a college be more like a firm? Change: The Magazine of Higher Learning 29 5, 33-38. Zirkel, P.A. (1996). The law of teacher evaluation Bloomington, IN: Phi Delta Kappa Educational Foundation.About the AuthorRobert E. Haskell


43 of 44 Brief Bio ~ Robert E. Haskell has been teaching college and university level courses for over twenty years. He earned his Ph.D. from the Pennsylv ania State University in Psychology and Social Relations, his M.A., and B.A. from San Francisco St ate University. His areas of research and teaching include: transfer of learning, analogical reasoning, small group dynamics. Major publications include: four books, the latest of whi ch is, The Future of Education and Transfer of Learning: A Cognitive Theory of Learning and Instru ction For The 21st Century (forthcoming), and numerous presentations, chapters, and research arti cles in national and international journals. He also serves on several editorial review boards, and is Associate Editor of The Journal of Mind and Behavior. He is former Chair, and currently Profess or of Psychology, Department of Social and Behavioral Sciences, University of New England.Professor of PsychologyUniversity of New EnglandBiddeford, Maine 04005UNE Home Page: E-mail: Copyright 1997 by the Education Policy Analysis ArchivesThe World Wide Web address for the Education Policy Analysis Archives is General questions about appropriateness of topics o r particular articles may be addressed to the Editor, Gene V Glass, or reach him at College of Education, Arizona Stat e University, Tempe, AZ 85287-2411. (602-965-2692)EPAA Editorial Board Michael W. Apple University of Wisconsin Greg Camilli Rutgers University John Covaleskie Northern Michigan University Andrew Coulson Alan Davis University of Colorado, Denver Sherman Dorn University of South Florida Mark E. Fetler California Commission on Teacher Credentialing Richard Garlikov Thomas F. Green Syracuse University Alison I. Griffith York University Arlen Gullickson Western Michigan University Ernest R. House University of Colorado Aimee Howley Marshall University Craig B. Howley Appalachia Educational Laboratory William Hunter University of Calgary Richard M. Jaeger University of North Carolina--Greensboro


44 of 44 Daniel Kalls Ume University Benjamin Levin University of Manitoba Thomas Mauhs-Pugh Green Mountain College Dewayne Matthews Western Interstate Commission for Higher Education William McInerney Purdue University Mary P. McKeown Arizona Board of Regents Les McLean University of Toronto Susan Bobbitt Nolen University of Washington Anne L. Pemberton Hugh G. Petrie SUNY Buffalo Richard C. Richardson Arizona State University Anthony G. Rud Jr. Purdue University Dennis Sayers University of California at Davis Jay D. Scribner University of Texas at Austin Michael Scriven Robert E. Stake University of Illinois--UC Robert Stonehill U.S. Department of Education Robert T. Stout Arizona State University