Thursday, May 10, 2007

On Tenure

There is a flurry of (rather ignorant, it seems to me) postings by academic bloggers (mostly law professors) about tenure, most of which are linked from this item.  In response to one of the items, David Luban (Georgetown) makes an excellent point about tenure and academic freedom:

The reason that tenure appears to function to protect academic freedom only "every now and then" is because it does a good job of protecting academic freedom, so that enemies of academic freedom don't even bother assaulting it except in a few unusual, perfect-storm cases such as Ward Churchill. But once tenure is abolished, I believe the assaults would come fast and furious.

The group most in need of tenure protection of their academic freedom is not law professors, nor left- or right-wingers in the humanities or social sciences. It is natural scientists--particularly in public universities--working on health and safety issues pertaining to Big Pharma, Big Oil, Big Anyone. It takes little imagination to see that, with billions of dollars at stake, major industries would pressure boards of trustees to fire anyone studying bad health effects of (say) Vioxx, or petroleum emissions. Private universities might be somewhat more immune from special-interest pressure, but they too could expect economic clout to be wielded to silence their pesky scientists.

But set scientists aside, and turn to law professors. Here, the test case of what happens without academic freedom is the campaign against law school environmental clinics at the University of Pittsburgh, the University of Oregon, the Universities of West Virginia and Wyoming, and above all Tulane. (I wrote about this a few years ago in Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers, 91 Cal. L. Rev. 209, 236-40 (2003).) Each clinic began projects that gored oxen of local business interests, and each was subjected to a withering campaign to destroy it or make its work more difficult.

I don't disagree with you that some law professors take advantage of tenure to cut their responsibilities to a minimum. The way to handle that is through merit raises (or rather, their absence) if the dean sees that the professor is an exploiter. Or by asking those who do no research to teach additional sections, or take on heightened committee work or administrative assignments.

It bears noting that tenure is not, contrary to what most of these discussions seem to suppose, "guaranteed" lifetime employment.  Tenure means that one can be terminated only for "good cause," which imposes both substantive and procedural requirements on the firing of a tenured professor.   The real solution in the case where a tenured faculty member fails to perform his or her responsibilities is to establish "good cause."  That can be done, and it is done, though usually not in the limelight that attaches to the politically motivated cases, like that of Ward Churchill.  That it is not done more often is because (1) there aren't, contrary to popular myth, that many cases of tenured faculty failing to discharge their duties, and (2) the cost of retaining non-performing tenured faculty is usually substantially less than the cost of terminating them (in part because of [1]).

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