For affirmance -- Justices Jacobs, Sullivan, Pashman and Clifford and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Jacobs, J.
On September 15, 1972 the defendant Board of Higher Education adopted a resolution which set forth general guidelines for the granting of tenure to faculty members in the State Colleges and for the periodic evaluation of tenured faculty members. The plaintiff Association of New Jersey State College Faculties, Inc., along with others, brought a Law Division action attacking the resolution and in due course the action was transferred to the Appellate Division. On October 20, 1972 the Board adopted a similar resolution with respect to County Colleges. The Association of New Jersey County College Faculties, Inc., along with others, appealed therefrom to the Appellate Division. R. 2:2-3(a). The matters were consolidated in the Appellate Division and while awaiting argument there we certified under R. 2:12.
New Jersey's Department of Higher Education (N.J.S.A. 18A:3-1 et seq.) has for some time been concerned with the proportion of tenured and nontenured faculty at State Colleges. This concern has been the subject of comprehensive study within our State and comparable concern has been the subject of comprehensive study elsewhere. See, e.g., Tenure
at the State Colleges of New Jersey (Department of Higher Education, Office of the Chancellor, June, 1972); Faculty Tenure, A Report and Recommendations by the Commission on Academic Tenure in Higher Education (The Jossey-Bass Series in Higher Education 1973). At various intervals the Department expressed to the State Colleges and to the Board of Higher Education (N.J.S.A. 18A:3-6) its view that tenure reforms were necessary and that unduly high proportions of tenured faculty disserved sound educational interests. In October, 1971 the Chairman of the Board of Higher Education addressed a letter to the Chairman of the Council of State Colleges suggesting the establishment of a joint committee to discuss the matter. The suggestion was not directly implemented but the Council proceeded on its own with the establishment of a committee headed by Dr. Clyde Davis of Glassboro State College. This committee prepared a report which was transmitted to the Board of Higher Education. Thereafter the Board requested the Chancellor (N.J.S.A. 18A:3-20) to prepare a staff study on the tenure situation at the State Colleges for the Board's consideration at its July, 1972 meeting. Such a study was prepared and its results were embodied in a June, 1972 report by the Chancellor, supra.
The report in its first section dealt with "Tenure and Institutional Flexibility." It noted that while there is a definite advantage to an institution in having "a stable group of faculty whose professional careers are secure," by tenure or otherwise, "an institution in which all faculty members are tenured would find itself in an intolerable situation." It would "quickly stagnate internally and lose most, if not all, of its ability to develop and change over time, consistent with its need to be responsive to the society in which it exists." It must retain "a degree of flexibility in the allocation of its faculty resources" so that it may start new programs, introduce young scholars, and meet urgent social policy by conduct such as active recruitment of "minority and female faculty members."
In its second section the Chancellor's report dealt with "What Proportion of the Faculty Should Be Tenured?" It recognized that it was not possible to establish with certainty the precise proportion of tenured faculty which would "'provide maximum flexibility while at the same time assuring a satisfactory base of faculty security and continuity."*fn* It recognized further that in the ultimate the determination would involve delicate matters of policy and judgment, though empirical data would be helpful in determining an appropriate range. In this connection the practices at state colleges and universities throughout the country were reviewed. A 1969-70 study of state and land grant colleges indicated that 54.8% of their faculties were under tenure; a study of 31 major universities in 1961-62 indicated an average tenure rate of 57.6%; an earlier study indicated a tenure rate of 53%; and a very recent study indicated that most of the public four-year colleges had less than half of their faculties on tenure, a significant number had between 51% and 70% on tenure and only a small number had over 71% tenured.
The report expressed the view that "a tenured faculty of between 50% and 60% is probably normative" and that "while normative patterns cannot, of course, be assumed to reflect sound practice, the general consensus which has developed at many institutions, each operating independently of the others, is perhaps evidence that a faculty tenured at that level is desirable." It concluded that a tenure ratio of 60% would generally "fulfill the dual and often conflicting institutional needs of both flexibility and stability." This
may be compared favorably with the following recommendation in the Faculty Tenure report (Jossey-Bass Series), supra at 50-51:
The commission recommends that each institution develop policies relating to the proportion of tenured and nontenured faculty that will be compatible with the composition of its present staff, its resources and projected enrollment, and its future objectives. In the commission's nearly unanimous judgment, it will probably be dangerous for most institutions if tenured faculty constitute more than one half to two thirds of the total full-time faculty during the decade ahead. The institution's policy in this matter, which should be flexible enough to allow for necessary variation among subordinate units, should be used as a guide in recruitment, reappointment, and the award of tenure. Special attention should be given to the need to allow for significant expansion of the proportion of women and members of minority groups in all faculties, especially in the tenured ranks. In achieving its policy goals as to the proportion of its faculty on tenure, institutions will need to proceed gradually in order to avoid injustice to probationary faculty whose expectations of permanent appointments may have been based on earlier, more liberal practices.
In a section captioned "The Current Tenure Status in the State Colleges" the Chancellor's report dealt with tenure proportions as evidenced by data submitted by the State Colleges in the spring of 1972. The tenured faculty in the colleges was approximately 63% in 1971 and had climbed to 71% in January, 1972. It was estimated that the range of tenured faculty at the colleges in 1972 would probably be "between 58% at the campus with the lowest tenure ratio and 75% at the campus with the highest tenure ratio." The report noted that while this indicated a serious tenure problem on some campuses, other factors affecting the tenure ratio must also be considered including "the growth of tenured faculty during the past several years, the effect of decreasing enrollment growth in the years ahead, the distribution of tenured faculty by department, and the distribution of tenured faculty by rank." The number of newly tenured faculty appeared generally to exceed the number of older tenured faculty who were leaving the colleges and if this trend continues, the report said, it could produce a faculty "six
years from now which may be 77% tenured." The report pointed out that while the tenure problem was serious enough at college-wide levels, it was perhaps even more serious at departmental levels since 30% of all departments were over 80% tenured. And it referred specially to the proportion of tenured assistant professors and instructors which it described as unduly high and which it ascribed to the practice of granting tenure without requiring "positive evidence of scholarly achievement and excellence in teaching."
In addition to its proposal for the adoption of an appropriate tenure ratio, the report recommended various practice and policy changes designed generally towards the end that the granting of tenure be confined to those who have not only performed satisfactorily but who have also evidenced that they are likely to contribute to future development of the college. It recommended that each of the State Colleges establish an institutional master plan forecasting its personnel requirements. It suggested that the planning should be considered "an on-going process involving faculty, administration, students, and trustees, as appropriate, and should serve as a basic guide for personnel actions." And it noted that in presenting an individual recommendation for tenure there should be suitable indication that the recommendation is consistent with the master plan. In its discussion of "qualifications for tenure" the report suggested the establishment of criteria which would ordinarily include the possession of "an appropriate terminal degree or its equivalent." However, the report noted that the requirement of a terminal degree was a matter upon which "reasonable men may reasonably disagree." In its closing remarks the report listed the advantages and disadvantages of the policies it proposed and concluded that "on balance, the advantages far outweigh the disadvantages."
At its July, 1972 meeting the Board discussed the Chancellor's report but deferred action until its fall meeting. In the meantime, copies of the report had been sent to the presidents of the ...