SECTION 4. NONREAPPOINTMENT OF FACULTY MEMBERS ON PROBATIONARY TERM APPOINTMENTS* [*See Section 7.f.]

a. Permissible and impermissible grounds for nonreappointment

Effective through December 31, 2003. Except as herein provided, the decision not to reappoint a faculty member upon expiration of a probationary term of appointment is committed, without further recourse, to the judgment of the officers of administration authorized to make it, acting in accordance with prescribed procedures. In exercise of their judgment, whether in the first instance or in review of a recommendation to reappoint, such officers may take into account and use as the basis of decision, in whole or in part, any factors deemed relevant to total institutional interests; except that the decision may not be based upon: (1) exercise by the faculty member of rights of freedom of speech guaranteed by the First Amendment to the Constitution of the United States or by Article I of the Constitution of North Carolina; or (2) discrimination based upon the race, sex, religion, or national origin of the faculty member; or (3) personal malice.

Effective January 1, 2004. Except as herein provided, the decision not to reappoint a faculty member upon expiration of a probationary term of appointment is committed, without further recourse, to the judgment of the officers of administration authorized to make it, acting in accordance with prescribed procedures. In exercise of their judgment, whether in the first instance or in review of a recommendation to reappoint, such officers may take into account and use as the basis of decision, in whole or in part, any factors deemed relevant to total institutional interests; except that the decision may not be based upon: (1) exercise by the faculty member of rights of freedom of speech guaranteed by the First Amendment to the Constitution of the United States or by Article I of the Constitution of North Carolina; or (2) discrimination based upon the race, color, sex, religion, national origin, age, disability, or honorable service in the armed services of the United States of the faculty member; or (3) personal malice. [Amended 1/1/04]
[Note: The 1/1/04 amendment added color, age, disability, and honorable service in the armed services to the list of impermissible bases of discrimination.]

Effective July 1, 2004. Except as herein provided, the decision not to reappoint a faculty member upon expiration of a probationary term of appointment is committed, without further recourse, to the judgment of the officers of administration authorized to make it, acting in accordance with prescribed procedures. In exercise of their judgment, whether in the first instance or in review of a recommendation to reappoint, such officers may take into account and use as the basis of decision, in whole or in part, any factors deemed relevant to total institutional interests; except that the decision may not be based upon: (1) exercise by the faculty member of rights of freedom of speech guaranteed by the First Amendment to the Constitution of the United States or by Article I of the Constitution of North Carolina; or (2) discrimination based upon the race, color, sex, sexual orientation, religion, national origin, age, disability, or honorable service in the armed services of the United States of the faculty member; or (3) personal malice. [Amended May 20, 2004, effective July 1, 2004]
[Note, the 5/20/04 amendment added sexual orientation to the list of impermissible bases of discrimination.]

b. Administrative conferences following decision not to reappoint

Within 10 days after receiving written notice of nonreappointment, a faculty member may in writing request a private conference with the officer of administration who made the decision, to discuss the reasons for nonreappointment. If the identity of the officer is not known to the faculty member, the department chairman shall provide the information forthwith upon request of the faculty member. The request for conference shall be granted and the conference held forthwith, within 5 days after receipt of the request if possible. Within 5 days after completion of the conference the officer of administration shall give a simple unelaborated written notice to the faculty member as to whether the original decision remains in effect.

If the notice is that the original decision remains in effect, the faculty member may proceed as follows. When the decision not to reappoint was made by an officer of administration in review of the recommendation of a department chairman to reappoint, the faculty member may thereupon proceed, in accordance with succeeding subsections, to request review by the standing committee of the faculty charged with reviewing discharges under Section 3 hereof.

When the decision was made in the first instance by the department chairman, the faculty member may, within 5 days after receipt of the notice, in writing request a conference with the officer of administration in immediate supervision of the department chairman. This request shall be granted and the conference held forthwith, within 5 days after receipt of the request if possible. Within 10 days after completion of the conference, the reviewing officer of administration shall in writing communicate his or her evaluation of the matter to the faculty member and to the department chairman.

The evaluation may be in the form of an unelaborated concurrence with the decision; an expression of disagreement with the decision, with or without supporting reasons; or a recommendation for reconsideration of the decision, with or without suggestions for specific procedures to be followed upon reconsideration. Whatever form the evaluation may take, it is merely recommendatory and not binding upon the department chairman, nor final as to the faculty member.

Within 5 days after receipt of an evaluation which involves disagreement with the decision or recommendation for its reconsideration, the department chairman shall in writing notify the faculty member and his or her immediate supervisor of his or her response.

c. Request for review by hearing committee; scope of review

If the faculty member has requested and participated in the administrative conferences provided in subsection b. and has received notice of unfavorable action resulting therefrom, the faculty member may within 5 days after receipt of such notice request a review of the decision by the standing committee of the faculty charged (under Section 3 hereof) with conducting hearings on faculty discharges. Such review may be had solely to determine whether the decision not to reappoint was (1) based upon any of the grounds stated to be impermissible in subsection a. of this Section 4, or (2) affected by material procedural irregularities. Whether procedural irregularities occurred shall be determined by reference to those procedures which were in effect when the initial decision not to reappoint was made and communicated. The hearing committee shall ask the Chancellor to certify what procedures were then in effect if that is a matter of dispute. For purposes of this Section 4, "material procedural irregularities" means departures from prescribed procedures governing reappointment that cast reasonable doubt upon the validity of the original decision not to reappoint.

The request for review shall be in writing and addressed to the chairman of the hearing committee. It shall specify the grounds upon which it is contended that the decision was impermissibly based or affected by material procedural irregularities, and shall include a short and plain statement of facts which the faculty member believes support the contention.

Submission of such a request constitutes on the part of the faculty member: (1) a representation that he or she can support his or her contention by factual proof, and (2) an agreement that the institution may offer in rebuttal of his or her contention any relevant data within its possession.

The hearing committee shall consider the request and shall grant a hearing if it determines after a preliminary review that the request contains a contention that the decision was impermissibly based or affected by material procedural irregularities and that the facts suggested, if established, might support the contention. If the request is not granted, this finally confirms the decision within the institution. If the request is granted, a hearing shall be held within 10 days after receipt of the request, provided that the faculty member shall be given at least 5 days notice of the hearing. [Amended 6/20/80; 1/9/87]

d. Conduct of hearing

The question before the committee shall be decided by the committee. However, the committee may delegate the duty of conducting a hearing to a panel of at least three members. The hearing shall be conducted informally and in private; only the members of the committee, the faculty member, the officer of administration who made the decision, and such witnesses as may be called shall attend except that the faculty member and the officer of administration may each be assisted or, in their absence, represented by a spokesman designated in writing so to act. Committee members who hold appointments in the faculty member's department or school or who will testify as witnesses, or who have any other conflict of interest are disqualified. Upon request of the faculty member, and with approval of the chairman of the committee, a transcript of the proceedings shall be made and provided to the faculty member. The committee may consider only such evidence as is presented at the hearing, and need consider only that offered which it considers fair and reliable. All witnesses may be questioned by members of the committee, the faculty member, and the officer of administration or the respective spokesmen of the faculty member and the officer of administration. Except as herein provided, the conduct of the hearing is under the control of the committee chairman or the member designated by the chairman for this purpose. [Amended 6/20/80]

e. Hearing procedure

The hearing shall begin with the faculty member's presentation of contentions, limited to those grounds specified in the request for hearing and supported by such proof as he or she desires to offer. When he or she has concluded this presentation, the hearing committee shall recess to consider whether the proof offered in support of the contention establishes the contention unless it be now rebutted or unless the decision not to reappoint be now otherwise explained. If it determines that the contention has not been so established, it shall so notify the parties to the hearing and thereupon terminate the proceedings. Such termination is not subject to review, except as provided in Section 8. If it determines that rebuttal or explanation is desirable, it shall so notify the parties and the hearing shall proceed. The officer of administration may then present in rebuttal of the faculty member's contentions, or in general support of the decision not to reappoint, such testimonial or documentary proofs as he or she desires to offer, including his or her own testimony. [Amended 6/20/80]

At the end of such presentation, the hearing committee shall consider the matter in executive session. The burden is upon the aggrieved faculty member to satisfy the committee by clear, cogent, and convincing evidence that his or her contention is true. [Amended 6/20/80]

f. Procedure after hearing

Effective through December 31, 2003. If the hearing committee determines that the contention of the faculty member has not been established, it shall, by a simple unelaborated statement, so notify him or her and the officer of administration. Such a determination is not subject to review, except as provided in Section 8. If the hearing committee determines that the contention of the faculty member has been satisfactorily established, it shall so notify him or her and the officer of administration by a written notice that shall also include a recommendation for corrective action by the officer of administration. [Amended 6/20/80]

Effective January 1, 2004. If the hearing committee determines that the contention of the faculty member has not been established, it shall make a recommendation to the Chancellor to uphold the decision not to reappoint. The Chancellor shall make a determination and, by a simple unelaborated statement, so notify the faculty member and the officer of administration. Such a determination is not subject to review, except as provided in Section 9. If the hearing committee determines that the contention of the faculty member has been satisfactorily established, it shall so notify him or her and the officer of administration by a written notice that shall also include a recommendation for corrective action by the officer of administration. [Amended 6/20/80; 1/1/04]

Within five days after receiving the recommendation, the officer of administration shall notify the faculty member and the chairman of the hearing committee what modification, if any, he or she will make with respect to the original decision not to reappoint.

If the officer of administration fails to make a recommended modification in the original decision, the hearing committee may submit a report to the Chancellor containing the committee's findings and recommendation and what it considers to be appropriate action by the Chancellor to resolve the matter satisfactorily. If the officer of administration who made the decision is the Chancellor, the report may be submitted to the Board of Trustees.