Professors should have rights just like students. The Fourteenth Amendment requires due process before a public institution may deprive one of life, liberty, or property. Thus, in a university setting, a professor's good name and reputation are considered a liberty right. Due process should be required before a professor is deprived of this liberty right [Hollander et al, 1985].
It is illegal even to post students' grades using their social security numbers or birth dates, yet each semester unscientific, unproven, and basically anecdotal data is published in the library at TAMU (and online) about professors' teaching. This same data is used in determining their salary increases, tenure decisions, and promotion decisions.
If a university damages a professor's reputation by embarrassing him or her in a public forum (e.g., placing SET data in the library and online), the professor could sue for libel or defamation. Professors have the right to sue for defamation if they can prove the university damaged their reputation or good name with false information. A university is responsible for making sure the data they make public is not defamatory or libelous. A university may have to prove that the evaluation of a professor by SET data is true in order to win in the courtroom.
Defamation refers to any communication that causes someone to be shamed, ridiculed, held in contempt, or lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Defamation is governed by state law, but is limited by the first amendment. The LECTRIC Law Library @ http://www.lectlaw.com
Few institutions use statistically valid evaluation forms; only 7 out 73 responses were statistically valid in one survey [Carr and Padgett, 1992]. Performance evaluation should be statistically reliable and valid. Since most SET results are prepared anonymously, an instructor has no recourse to confront his/her accusers. Universities may risk legal action when they defame a faculty member by releasing SET results. Andrews [1985, p. 48] asks why administrators allow their number one quality check, SET results, to be put in the possession of students when they do this in no other phase of personnel or other key management functions. Further, he suggests [p.106] that other areas of an instructor's job performance are completely neglected by institutions which rely solely on a SET system. Administrators may prefer SET results because they do not have to personally take a position with respect to the effectiveness of a teacher, or to spend the time to evaluate the professor by more reliable performance measurements.
Professional validation studies are impermissible 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 evaluating". The employer under Title VII of the Civil Rights Act of 1964 must meet "the burden of showing that any given requirement [or test] has a manifest relationship to the employment in question" [Griggs v. Duke Power, 1971]. "In view of the possibility inherent in subjective evaluations, supervisory rating techniques should be carefully developed, and the ratings should be closely examined for evidence of bias" [EEOC Guidelines, 99 CFR § 1607.5 (b) (4)].
An effective teacher adds value to his or her students. Measure the students beforehand, measure the students afterward, and the difference is value created. The more value created, the better the teacher. Most SET surveys merely ask the students if they are happy with their instructor. Basically, SET measures the wrong thing. EEO guidelines § 1607.5 (b) (3) state that "the work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence." Universities would have difficulty providing current empirical evidence supporting SET validity because of so many confounding variables and bias [Halady and Hess, 1994]. To use SET results to rate teaching performance is a mistake, and may be dangerous legally [Ellis, 1985].
In one decision involving a tenure dispute [Fields v. Clark University, 1987], the First Circuit held for the university. The plaintiff argued that the evaluations were biased against females, but she did not question the validity of the SET instrument. Questioning the validity of the instrument might have changed the outcome of the court decision [Carr and Padgett, 1992].
One should consider the due process clause of the Fifth amendment, also. There is support that older faculty receive lower rating. [Feldman, K.A. "Seniority and Experience of College Teachers as Related to Evaluations They Receive from Students," Research in Higher Education, Vol. 18 (1983), pp. 3-124.]
A 1992 research paper concluded as follows:Other faculty may wish to use Age Discrimination in Employment Act of 1967 (ADEA). See 81 Stat. 602, as amended by 29 U.S.C. 621 et seq. (1988 ed and Supp. V). ADEA makes it unlawful for an employer to discharge any individual or otherwise discriminate with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's age. 29 U.S.C. 623(a)(1). See Christine McKennon v. Nashville Banner Publishing Company, Supreme Court, January 23, 1995."Some clear trends emerged from comparison of course and lecturer characteristics of the 'good' and the 'poor' lecturers. The 'good' lecturers tended to be younger and were more likely to be teaching the students' major subject(s). The 'poor' lecturers tended to give somewhat lower course grades and to teach slightly larger classes." [p.723.] David Watkins and Andres Gerong, "Evaluating Undergraduate College Teaching: A Filipino Investigation," Educational and Psychological Measurement, Autumn 1992, pp.727-734.
Also, when significant differences are found in studies involving male versus female teachers, more of them favor women than men. [K.A. Feldman, 1993].
Opinions are one of the weakest forms of evidence and, except for expert opinions, are not admissible as evidence in a court of law. Students are obviously not experts.
Anonymous opinions are even weaker than opinions. Merely tabulating anonymous opinions does not create empirical evidence and allow the results into a court room.
SET data is no different than raw F.B.I. data. Would a judge allow the F.B.I. to run data through a computer and then allow the tabulated results to be admitted in the courtroom ? Lawyers should use the hearsay rule to exclude SET data from the courtroom.
Hearsay is a statement (oral or written), other than one made by a declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
Robert E. Haskell, "Academic Freedom, Tenure and Student Evaluation of Faculty: Galloping Polls in the 21st Century." Education Policy Analysis Archives, v5, n6.
Abstract: Despite a history of conflicting research on the reliability and validity of student evaluation of faculty (SEF) it has not typically been viewed as an infringement on academic freedom. When it is suggested that SEF may impinge on academic freedom, it is often considered an attack on either student rights, or on the process of evaluating faculty performance in general. Faculty and educational administrators and surveys are reviewed as SEF is used in salary, promotion and tenure decisions. It is suggested that the literature shows that SEF infringe on the instructional responsibilities of faculty by providing a control mechanism over curricular, course content, grading, and technical methodology. It is further suggested that SEF play a significant role in current attacks on tenure, and that its role in a demographically diverse 21st century educational system has changed from its benign historical origins. It is concluded that contrary to current views, SEF is a serious unrecognized infringment on academic freedom.
Robert K. Robinson and Ross L. Fink, "Public Disclosure of Teaching Evaluations: Privacy and Liability Considerations," Journal of Business Education, May/June, 1996, pp.284-287.
Even in the event that the teaching evaluations are not considered a component of a faculty member's performance appraisal process, the institution may still run afoul of the common law torts of invasion of privacy and defamation. These state tort laws would also apply to private institutions not explicitly covered by state privacy legislation.
Invasion of privacy and defamation claims both address the manner and scope of disclosing highly personal matters such as an employeee's qualifications and performance (Sanford, 1987). Defamation is distinguished from privacy in that defamation focuses on the injury to the employee's reputation, whereas privacy torts are tied to resulting emotional injury. Analagous to privacy statutes, defamation laws differ among the 50 states, but they all posses some generic elements (O'Brien, 1979).
Administrators in higher education settings should be aware that the dissemination, either direct or indirect, of any information from employee personnel files that might be interpreted as unfavorable or adverse to the employee potentially invites litigation. A comprehensive examination of policies regarding the publication of teaching evaluations at public and private universities is needed to establish bookmarks for faculty privacy expectations. Certainly, it would be worthwhile for individual institutions to develop consistent policies regarding the release of teaching evaluations.
[Do not sign any statement allowing your evaluations to be released.]
Sources
Andrews, H.A. Evaluating for Excellence. Stillwater, OK: New Forums, 1985.
Carr, James W. and T.C. Padgett, "Legal Liability When Designing or Adopting Student Rating Forms," Conference on Evaluating Faculty Performance, 1992, pp. 68-75.
Feldman, K.A., "College Students' View of Male and Female College Teachers: Part II--Evidence from Students' Evaluations of Their Classroom Teachers," Research In Higher Education, Vol. 34, No. 2, 1993, pp. 151 - 191.
Fields v. Clark University, 817 F.2d 931 (CA-1, 1987).
Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Haladyna, Thomas and R.K. Hess, "The Detection and Correction of Bias in Student Ratings of Instruction," Research in Higher Education, Vol. 35, No. 6, 1994, pp. 669-687.
Hollander, P.A., D.P. Young, and D.D. Gehring, A Practical Guide to Legal Issues Affecting College Teachers, College Administration Publication, 1985.
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Society for A Return to Academic Standards
Last Updated: 8 April 1997
