Is It Discriminatory to Require Peer Review?

A former professor at the University of British Columbia who lost her tenure bid because of a poor publication record is arguing that the university discriminated against her in discounting the nontraditional scholarship she did as an indigenous woman. The case is moving forward after British Columbia’s Human Rights Tribunal rejected the university's request to dismiss the complaint filed by Lorna June McCue, a former UBC assistant professor of law who is of Ned’u’ten ancestry.

“The complainant states that peer review for nontraditional indigenous scholars, like her, goes beyond traditional journals to include publication in nontraditional journals and oral dissemination,” tribunal member Norman Trerise wrote in a 71-page decision allowing the case to proceed. “The complainant states that her approach to scholarship is based on her Aboriginal identity, and for her community, the oral dissemination of knowledge is comparable to the dissemination of knowledge through written publications. The complainant states that her oral scholarship was not considered or weighed appropriately by the university, in that a significant amount of her work was excluded because of the way she does her work as an indigenous female scholar.”

UBC, a leading research university, argues that it was “as flexible as possible” in evaluating McCue, but says her “output fell far short of any reasonable standards for granting tenure.”

In his decision, issued Jan. 15, Trerise summarized UBC’s position that McCue was “reckless with her career” and that she did not take advantage of reductions in teaching and administrative duties granted to give her time to focus on publishing.

“They say the evidence demonstrates that she was repeatedly and explicitly warned over several years that she had not been meeting the standard required for meeting promotion at the Faculty of Law,” Trerise wrote of UBC's position. “They say that she had been told that she was to produce five to six significant and original peer-reviewed papers well in advance of her application for tenure and promotion, but she produced none.” (McCue maintains she produced two.) “They say she was explicitly told not to focus on book chapters and conferences and to focus on peer-reviewed papers. They say that Ms. McCue ignored that direction, refused the formal mentoring put in place to assist her in meeting the standard and that she was irresponsible when she chose to ignore those warnings.”

“UBC says that it was only at the 11th hour, after Ms. McCue received the Faculty Committee’s letter of concern respecting the material that she had presented, that she asked UBC to redefine and reinterpret the standard so that all of her work ‘would count.’ They say that this would require not merely a more liberal interpretation of the standard but an abdication from the standard,” Trerise wrote.

“UBC says that the evidence is that none of the complainant’s work, when viewed in the most generous light, met the standard interpreted in the broadest possible way.”

McCue, meanwhile, objects to what she describes as the university's failure to count her community-based research as scholarship.

“Ms. McCue points out that the evidence establishes that she was hired to perform a role of carrying out academic and community-based research to develop a program, connect with indigenous peoples and engage with them in their communities, and identify their legal needs so that the university can be involved in connecting faculty, students and indigenous communities together,” Trerise wrote.

“Ms. McCue says that the evidence establishes that she got penalized for continuing to do her work in that fashion and that the university began to factor out her specialized work when assessing her achievement. She says that in ignoring her work in the indigenous community and paying attention only to the traditional law approach to assessment, UBC was trying to change who she was.”

“Ms. McCue’s position, succinctly stated, is that there is nothing in the standard that requires five to six significant peer-reviewed publications in her curriculum vitae in order to be successful in her tenure and promotion application. She also says that there is nothing in the standard that requires a 40-40-20 approach to evaluating scholarship, teaching and service” (in which scholarship and teaching together account for 80 percent of the weight granted to the tenure decision and service the other 20 percent).

According to Trerise, McCue argued for a more “fluid and flexible” approach to weighing her scholarship, teaching and service achievements. In a letter McCue wrote to her dean, excerpted in Trerise’s decision, she suggested that her service contributions were undervalued and proposed that “my activities that are scholarly and teaching in nature, but which may have been conducted under my service hat, be measured as evidence for meeting the criteria for scholarly activities and teaching.”

Trerise’s decision notes that the conclusions of the faculty committee charged with reviewing McCue’s tenure bid “seem to have been equivocal” in regards to her teaching, while her colleagues found she met the established criteria for service. The faculty committee recommended against tenure, a decision upheld at higher levels of the university, based on its assessment of the quality and quantity of her scholarship.

A UBC spokeswoman declined to comment on the case on Tuesday. McCue could not be reached for comment.

In his Jan. 15 decision, Trerise did not reach a judgment about McCue’s claim of discrimination but merely concluded that “the evidence is present which could allow Ms. McCue’s complaint to succeed and that it would be inappropriate, in any event, to end this matter without a full examination of the evidence of both parties.”

Ultimately at issue, Trerise wrote, will be whether cultural traits associated with McCue’s indigenous identity contributed to her failure to meet the university’s tenure and promotion standard.

UBC argues that McCue’s decision not to publish in peer-reviewed venues was her choice. According to Trerise's summary, university officials point to McCue’s own admission that “there is nothing about indigeneity that prevents an indigenous person from having the capability of meeting the university’s requirements. They also point to the fact that each and every one of the three indigenous witnesses called to support Ms. McCue’s case had, in order to establish their own educational credentials, met such standards. Further, UBC relies on evidence from those witnesses that there are good reasons for peer-reviewed publication in terms of the ability to disseminate information which it is important to the indigenous community be disseminated. Ms. McCue answers by submitting that, while she may have chosen not to publish in the Western sense, that choice was driven by her indigeneity and that UBC should have responded to her requests that the criteria that make up the standards for UBC be re-evaluated to overcome her difficulties with them.”

Trerise concludes that “there is evidence which supports Ms. McCue’s argument that her choices were compelled by her identity as an indigenous woman. There is evidence before the tribunal to support that Ms. McCue is an indigenous person and that the communication patterns of indigenous persons are quite different than that of much of the population of North America which is not indigenous. That indigenous communication style, on the evidence, is one of an oral tradition rather than a tradition of writing. It is one of an oral tradition to the point that even the communication of the results of research into community issues is or can be accomplished orally rather than by a written report. Ms. McCue’s evidence suggests that she places herself very much in that oral tradition. The evidence of [two supporting witnesses] Dr. [Frances] Henry and Dr. [Jo-Ann] Archibald supports that adherence to an indigenous communication style is often necessary to carry out research in the indigenous community.”

“It also supports that, for indigenous scholars, there can be significant compromise involved in meeting the traditional research and publication requirements required for tenure and promotion in the university environment,” Trerise wrote. “While this is not a systemic complaint, Ms. McCue has, in her evidence, set out that, for her personally, meeting those requirements would constitute a substantial compromise. As she has put it, it would require her to be a round peg in a square hole.”