Faulty Towers: Tenure and the Structure of Higher Education

by Roger E. Meiners, Ryan C. Amacher

Overview

Setting the record straight about the institution of academic tenure, this book elucidates its history, legal status, and common misunderstandings. Meiners argues that the original aim of tenure-to ensure academic freedom and integrity-can still be achieved and that the belief by many professors that tenure is a guarantee of lifelong entitlement, whereby only the commission of a crime can lead to dismissal, is wrong. He contends that as long as college administrators follow the rules of their own institution, there is little to prevent universities from dismissing tenured faculty who have become incompetent.

Product Details

ISBN-13:	9781598132533
Publisher:	Independent Institute, The
Publication date:	09/21/2015
Sold by:	Barnes & Noble
Format:	eBook
Pages:	96
File size:	3 MB

About the Author

Roger E. Meiners is a professor of law and economics at the University of Texas at Arlington. He is the author of Common Law and the Environment, Cutting Green Tape, and Federal Support of Higher Education. He is the former director of the Atlanta regional office of the Federal Trade Commission. He lives in Arlington, Texas.

Read an Excerpt

Faulty Towers

Tenure and the Structure of Higher Education

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By Ryan C. Amacher, Roger E. Meiners

The Independent Institute

Copyright © 2004 The Independent Institute
All rights reserved.
ISBN: 978-1-59813-253-3

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CHAPTER 1

The Origins of Tenure

When Harvard's first president, Henry Dunster, espoused a theological argument about infant baptism that differed from the more popular view, he had to resign from office. That was typical of the orthodoxy required of college faculty until late in the nineteenth century, by which time the churches lost their influence over many of the colleges they had established, and religious ties at state colleges were disappearing. Before the twentieth century, those employed by a college were expected to follow the accepted norms of behavior of a particular religion or the views espoused by founders and benefactors. However, orthodoxy within individual colleges did not mean that competition in the market for ideas did not exist.

Many new colleges were created as alternatives to the views espoused at existing institutions. Students could attend colleges that offered widely divergent religious and nonreligious views. The diversity across colleges was the bulwark of academic freedom (Brubacher and Rudy 1958, 299). Individual faculty had less freedom within particular colleges than they do now, but there may have been more diversity in the range of positions espoused across colleges a century or two ago than is the case today, when most colleges look very much alike.

The end of the nineteenth century saw the rise of what is now called academic freedom. By 1900, the presidents of Chicago, Columbia, and Harvard all asserted that no donor would be allowed to interfere with the ideas espoused by university faculty. Then as now, college presidents and trustees did not care much for public pronouncements by faculty about controversial political issues, but they still defended the faculty's right to speak out. Although outlandish faculty opinions are often not good advertising for a college, especially when it is time for legislative funding, even a century ago there appears to have been little monitoring of faculty members' politics. There is, rather, a practical concern about the reputation a university could earn because of the radical statements made by some faculty members about issues outside the university.

Much is made in academic circles about cases in the past in which faculty were fired because of their political pronouncements. Fortunately, such instances were few, and restrictions on speech were not severe even by current standards. A famous controversy involved the case of Richard T. Ely of the University of Wisconsin. It is often cited as an example of how academic freedom can be infringed. Ely, a prominent economist, publicly advocated labor strikes and boycotts, not an acceptable view in 1894, and he was roundly criticized by the press and state legislators. The board of regents of the university issued a strong document on behalf of academic freedom, stating "We could not for a moment think of recommending the dismissal or even the criticism of a teacher even if some of his opinions should, in some quarters, be regarded as visionary" (quoted in Hofstadter and Smith 1961, 860). Ely, who did not have tenure as we know it today, was not touched.

Nevertheless, the folklore of academic freedom is that the formation of the AAUP was stimulated by attacks on Ely and on other faculty "brave" enough to weather the blows inflicted by stinging newspaper editorials and haughty speeches from legislators incensed by faculty pronouncements on political issues. As one eminent historian of higher education notes, it is interesting that although the AAUP has always made much of the nonsubstantive "persecution" of left-wing faculty members, "purges of conservative professors in certain populist institutions [never] aroused this group to similar indignation" (Metzger 1973, 139). Little has changed in that respect over the decades.

The AAUP's "General Declaration of Principles," issued in 1915, asserts that institutions of higher learning must not have restrictions on faculty members' ideas. This document contains most of the traditional pronouncements on behalf of academic freedom (reprinted in Joughlin 1969, 155–76). It states that the role of college trustees is to raise money; they "have no moral right to bind the reason or the conscience of any professors" (Joughlin 1969, 160). It claims that people are drawn to the academic profession not because they seek financial reward, but because they are "men of high gifts and character" (Joughlin 1969, 162). Scholars must be allowed to do what they think is best; "once appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene" (Joughlin 1969, 163). Universities exist for three reasons: (1) to advance human knowledge (research), (2) to provide instruction to students (teaching), and (3) to develop experts for public service. These functions require the acceptance and enforcement "to the fullest extent [of] the principle of academic freedom" (Joughlin 1969, 165).

To protect academic quality, the AAUP founders recommended that universities take several steps. First, faculty members should be judged only by committees composed of fellow academics. Such committees would determine what questions of academic freedom were involved and whether the faculty member in question should be disciplined or dismissed. Second, such academic committees should protect college administrators and boards of trustees from unjust charges of infringements of academic freedom. Third, faculty appointments should be made only with the advice and consent of a faculty committee. When faculty are hired, their contracts should be clearly written. Full and associate professors should have tenure. Assistant professors should serve ten-year probationary terms prior to consideration for tenure and promotion. The grounds for dismissing faculty should be clearly stated, and faculty committees should be involved in such decisions.

The experience of the AAUP, the primary investigator of charges of infringements of academic freedom, indicates that violations of academic freedom are in fact unusual. In 1932, the AAUP reprinted ten years' worth of reports by its Committee on Academic Freedom and Tenure. The 1928 report was typical. Various faculty members had filed twenty-plus complaints, seeking assistance from the AAUP. "In only one case was an investigation ordered" (Committee on Academic Freedom and Tenure 1932, 341). Instances of invasions of academic freedom, from the AAUP perspective, were rare. As today, most cases alleging violations of academic freedom were brought by faculty who were denied tenure owing to poor performance or to the administration's failure to follow proper procedure, which is still the most common factor in tenure disputes.

Tenure Is Not New

Tenure as we know it today was initialized in the early 1900s, but before that colleges did not dismiss professors willy-nilly. By 1820, Harvard had appointed professors with "indefinite" terms. Other colleges began to follow its system. As faculty ranks were created, faculty members were given the opportunity to work for advancement. However, if a faculty member was not promoted, it did not mean that he might not remain indefinitely at the college at the same rank.

During colonial times, professorial-rank faculty had a type of tenure. They were allowed to continue in office "during good behavior" (Metzger 1973, 126). During the nineteenth century, the tenure of faculty was formally a bit less secure. College charters made it clear that faculty held their positions "at the pleasure of the trustees." In practice, faculty had a reasonable expectation that their tenure would continue, but most were subject to dismissal at the will of the trustees. The courts rarely intervened in dismissals.

It was not until the twentieth century that the faculty appointment system evolved to one that requires a regular faculty member to leave a university if not promoted or tenured after a certain number of years (Metzger 1973, 122). Before tenure became formal, most faculty appointments were year to year, but it was rare for a college not to reappoint all members of the faculty. A survey of twenty-two major universities in 1910, before tenure was adopted, shows that only faculty members at the rank of instructor were reappraised annually. Those in the professorial ranks were said to hold their positions with "presumptive permanence." The rules varied for assistant professors: at approximately one-third of the colleges surveyed, such appointments were considered permanent; at most colleges, it was a multiyear appointment subject to renewal. "In all cases the meaning is the same, that the appointment is for life to the age of retirement, provided the appointee is efficient. ... Appointments of professors and associate professors are practically permanent" (van Hise 1910, 58–59). Another professor of that period observed, "In practically all of the larger institutions professors enjoy indefinite or permanent tenure upon the first appointment" (Sanderson 1914, 892).

A Desire for Higher Standards

The AAUP was formed in 1915 by faculty in secure positions at leading universities who suffered no employment threat from the lack of formal tenure; they lived under the system of presustatuimptive permanence. As distinguished scholars, all could easily find comparable positions at other colleges. The AAUP founders proposed that it undertake "the gradual formation of general principles respecting the tenure of the professorial office and the legitimate ground for the dismissal of professors" (Metzger 1973, 135–36). A key part of this process was the use of faculty committees to review faculty appointments, rather than leaving such decisions completely at the discretion of the higher administration.

Even before the formation of the AAUP and the acceptance of formal tenure by colleges, faculty participation in the recruitment and selection of colleagues had increased, and administrators were consulting more often with the faculty on many areas of university life. During the late 1800s and early 1900s, most large universities set up faculty-administrator committees to determine many university policies. The adoption of this practice was forced by the increasing size of universities, which made it difficult for administrators to monitor every aspect of the organization. The larger size of universities also reflected the increasing sophistication of academic disciplines, which in turn required specialization to allow knowledgeable decisions about faculty appointments and curriculum.

Trustees were passive about faculty employment decisions. By 1910, all but one of the twenty-two leading universities surveyed "reported that their governing boards simply ratified the president's nominees for faculty positions" (Metzger 1973, 142–43). The point is that before tenure as we know it was established, the faculty appointment system operated much as it does today. Trustees did not run the show. Hence, one leading academic, writing in 1918, could say that "governing boards — trustees, regents, curators, fellows, whatever their style and title — are an aimless survival from the days of clerical rule, when they were presumably of some effect in enforcing conformity to orthodox opinions and observances, among the academic staff" (Veblen [1918] 1957, 48).

In 1915, the newly formed AAUP appointed the Committee of Fifteen, which recommended some tenure rules, producing the modern form of tenure, although there have been modifications. The committee recommended that tenure be granted after a ten-year probationary period, during which time the assistant professor could be dismissed. At the end of the probationary period, the faculty member would either be dismissed or tenured ("Report of the Committee" 1932, 390–91). Given the AAUP leaders' incentives at that time and the tenor of their discussion on the record, it is clear that they believed a tenure track would avoid the problems created by the prevailing "presumptive permanence" rule then in place. That is, leading scholars wanted to be sure they did not have to tolerate nonproductive colleagues imposed on them by administrators who did not know or care about quality within a given discipline. The adoption of tenure tracks was intended to raise the standards for faculty. "If this profession should prove itself unwilling to purge its ranks of the incompetent and the unworthy, or to prevent the freedom which it claims in the name of science from being used as a shelter for inefficiency, for superficiality, or for uncritical and intemperate partisanship, it is certain that the task will be performed by others ... who lack certain essential qualification for performing it" ("Committee Report on Academic Freedom" 1915, 34).

Colleges slowly adopted the AAUP's recommendation. A report in 1924 found that in some colleges it was still the case that "after the first year's service a man is practically a fixture unless something very unforeseen happens" (Brooks 1924, 498). At schools with tenure tracks for assistant professors, most had a two-or three-year track, not a ten-year track as had been recommended. "Reappointment, especially if made more than once, carries with it a strong presumption of permanence" (Brooks 1924, 498). A report in 1932 found that "There is a presumption of permanency for assistant professors in 91 [of 283] of the institutions studied" ("Study of Tenure of University and College Teachers" 1932, 256). By that time, approximately half of the colleges had adopted formal tenure rules, including provisions for dismissal in case of improper behavior or incompetence.

In 1940, the AAUP recommended that the probationary period be reduced to seven years, which is still the usual standard. Colleges that subscribe to AAUP standards, as most now do, must make tenure decisions before the probationary period ends, or tenure is presumed to have been granted. The AAUP does not recommend conditions under which tenure may be revoked. The 1958 "Statement on Procedural Standards in Faculty Dismissal Proceedings" indicates that dismissal of tenured faculty "will be a rare exception, caused by individual human weakness" (given in Joughlin 1969, 41).

General Tenure Standards

Because "human weakness" is a vague standard, each college must put details in its rules about what constitutes standards for obtaining and maintaining tenure. To be tenured and promoted, one is usually reviewed on the basis of effectiveness in teaching, research (academic publications), and service (a usually irrelevant category that often includes willingness to serve on assorted college committees). Some colleges include "cooperation" or "collegiality" in their criteria, which means that the other faculty find the person to be a tolerable colleague. Nontenured faculty are largely at the mercy of their tenured colleagues, not of the administration or trustees, because tenured faculty make key recommendations about tenure approval or denial. This is a key point in the current incentive structure of colleges.

Most college faculty rules state something to the effect that to keep tenure one must maintain the standards of the profession. That is, one must continue to be a decent teacher of competent material and maintain some evidence of scholarly ability in one's areas of academic expertise. The rules are basically the same at most public and private universities. In other words, there is no legal protection for faculty who stop developing intellectually, do not meet the standards of their discipline, or become unprofessional in the classroom. This point is worth repeating: tenure does not protect faculty who become incompetent.

Trustee intervention against faculty is as rare now as it was a century ago, in the days of the ranting socialist economist Richard T. Ely. During the Vietnam War, some trustees made noises about getting rid of antiwar faculty, but the court records indicate that few actions were taken. In the McCarthy era, some instances in which faculty claim to have been dismissed as political retaliation were more likely dismissals for incompetence. However, it should be stressed that some teachers in the McCarthy era were indeed dismissed because of their political views. Loyalty oaths were commonly required of all state employees until the 1950s or 1960s. Another example of legislative intervention in universities occurred in 1970 in California. The legislature passed a resolution requesting that University of California regents not allow universities to hire faculty members without a probationary period (that is, not allow full professors to be hired with tenure). The regents ignored the resolution, and nothing happened (O'Neal 1973, 180).

What Does Tenure Mean Today?

The definition of tenure, as designed by the AAUP in 1915, has not changed much. The most commonly used definition comes from the AAUP's "1940 Statement of Principles on Academic Freedom and Tenure":

(a) After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except in case of retirement for age [largely abrogated by federal law], or under extraordinary circumstances because of financial exigencies.

(Continues...)

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Excerpted from Faulty Towers by Ryan C. Amacher, Roger E. Meiners. Copyright © 2004 The Independent Institute. Excerpted by permission of The Independent Institute.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Preface,
Introduction,
Chapter 1 The Origins of Tenure,
Chapter 2 The Legal Meaning of Tenure,
Chapter 3 Roots of the Structural Problems in Higher Education,
Chapter 4 Eating the Fixed Pie,
Chapter 5 Managing Faculty as a Valued Resource,
Chapter 6 Reforming Tenure or University Structure?,
Chapter 7 Internal Reforms,
Chapter 8 External Reforms,
Chapter 9 Conclusion,
Appendix,
Notes,
References,
Index,
About the Authors,