On Tenure

As a protection for academic freedom, tenure is dead. The battle for the universities is over. All that remains is for the victors to go around the battlefield to shoot the wounded and cow the remaining populace into resentful silence.

If you doubt this, look around you. Tenure offered no protection to Joshua Katz, Eric Lander, David Sabatini, Jordan Peterson, Bret Weinstein, Heather Heying, Larry Summers, Tim Hunt, soon very likely Amy Wax, and hundreds of others.

The American Association of University Professors (AAUP) represents itself as the resolute defender of academic freedom and tenure in the American academy. Where are they in this fight? The AAUP cavalry will not be coming to the rescue. The AAUP has now merged with the American Federation of Teachers (AFT), as left wing an advocacy group as they come. Doubt me? Here was the AAUP prior to the merger:

The principal purpose of tenure is to safeguard academic freedom, which is necessary for all who teach and conduct research in higher education.

And here is the AAUP post-merger:

The AAUP is committed to fighting systemic racism and pursuing racial justice and equity in colleges and universities, in keeping with the Association’s mission to ensure higher education’s contribution to the common good.

The AAUP has gone full woke, in other words, and like the now-woke ACLU, applies a political litmus test for the causes and individuals it will defend. The cases of Professor Bret Weinstein, mentioned above, and Dr. Melissa Click provide an illustration.

In the case of Prof. Weinstein, a 2017 wave of race activism was spreading through his home institution, Evergreen State College, in Washington state. Weinstein, politically liberal himself and tenured, nevertheless called out some of the demands, such as for all white people to leave the campus for a day, as antithetical to the core mission of the university and tinged with anti-white racism. For this, he was hounded by student activists to the point that he needed campus police protection. He, along with his spouse (also a biology professor), eventually resigned from Evergreen.

Prof. Click, a communications professor at the University of Missouri-Columbia, got herself into controversy in 2016 during the racial turmoil following the death of Michael Brown in Ferguson, Missouri. Prof. Click forcibly attempted to exclude two white students from a portion of the university’s quadrangle (a public space paid for with public funds) where black students were staging a protest. The encounter resulted in a police complaint of assault by one of the students. Earlier, she had also engaged police in a verbal confrontation at a homecoming parade. After a lengthy investigation, Prof. Click was fired. She is now a professor at Gonzaga University.

Both Weinstein and Click left their academic positions in the aftermath of controversies over racial politics. Bret Weinstein’s controversy was over a clear defense of academic freedom. Melissa Click’s controversy had nothing to do with academic freedom: it was a clear case of misconduct. The Evergreen State administration did nothing to defend Bret Weinstein, and in fact contributed to the mob mentality against him and his spouse, Heather Heying, also a biology professor. The University of Missouri administration bent over backwards to defend Melissa Click, to the point that state legislators had to intervene. And the AAUP? The AAUP was all over Melissa Click’s case, even though it had nothing to do with defense of academic freedom. In contrast, the AAUP stayed well away from Bret Weinstein’s case, even though there were serious infringements of academic freedom in play. A search through the AAUP website reveals one passing reference to the Weinstein affair in the comment thread to a heavy-breathing article published on the AAUP website about the supposed “far-right” assault on academic freedom.

The difference? Melissa Click’s misconduct came down on the correct side of the AAUP’s litmus test. Bret Weinstein’s came down on the wrong side. This is the AAUP’s woke litmus test in action.

Now that tenure has become an instrument of political activism, political opposition to tenure has grown. Proposals range from abolishing tenure altogether, as the Lieutenant Governor of Texas would like to do, or weakening it, as the University of Arkansas has done, to replacing tenure with renewable contracts with terms of five to seven years,¹ to tightening up the evaluation procedures that determine the grant of tenure. The governor of Florida has signed into law the Post-Secondary Education Act, which allows the periodic review of tenure so that “unproductive” faculty may be weeded out. However, the proposed reforms are likely to make the problem worse, not better, because they are reacting to what the universities have become, not to what tenure is supposed to be.

Nor are academics themselves any clearer on the matter. A personal experience illustrates this. I was on the faculty of a small state university which was joined by charter to a large, well-endowed private university. Under the terms of our charter, faculty could participate in the governance of both universities. A few years back, both were engaged in discussions about tenure policies. I was involved in both discussions, in my own college as a professor, and at the private university as my college’s delegate to their faculty senate.

The character of the debates could not have been more different. The faculty of the private university discussed tenure as a license to take intellectual risks. The state college’s faculty, in contrast, centered its discussion around developing a matrix of performance: papers published, grants obtained, students trained, and so forth. So what did the two institutions think tenure was intended to protect? Risk-taking, or a reward for past performance? One aimed to build a community of intellectuals, the other to build a community of Teamsters.

So I think it is fair to say that we are deeply confused about tenure.

While tenure is broadly understood as a bulwark for academic freedom, there is a deeper issue that motivated the founders of the AAUP, an issue that we have largely forgotten today.

The AAUP began in 1915 as an ad hoc committee of scholars, formed in response to several egregious instances of college presidents and boards of trustees summarily dismissing professors for holding unpopular or contrary opinions.² This ad hoc committee articulated a clear understanding of what tenure is supposed to be. Following are several excerpts from their report (my emphasis throughout):

[There is] the view … that academic teaching is a purely private employment, resting on a contract between the employing authority and the teacher. The same authority may dismiss the employees at any time, for any cause, or for no assigned cause whatever; and the contract itself is terminable at the pleasure of the trustees.  

In other words, presidents and trustees regarded professors as mere employees, with no more protection than the humblest groundskeeper or janitor.

The professors obviously had a different point of view:

On the other hand, this is denounced as the "hired man" concept of the subject, destructive to the scientific spirit of the work, and the dignity of the profession necessary to attract able scholars and teachers.

The report goes on to say that

Academic teaching … must be regarded as a quasi-public official employment in which the original appointment is made by the authorities who are bound to act not as private employers or from private motives but as public trustees.

There is a good public reason for this special responsibility:

It is held that only in this way can there be made possible the development of the standards of disinterested scholarship or can there be created a body of scholars and teachers to perform a necessary function which cannot otherwise be achieved.

Hence, the special public responsibility of administrations and trustees:

It is a distinctly different service from that of the judge, the lawyer, the journalist, or the ordinary corporation official. It implies a security of tenure, not as a personal privilege, but as an expedient, far-sighted public policy, which, so far as it is consistently followed, attracts high ability into a social service with a small pecuniary award.

In a nutshell: society derives unique benefits from having a class of scholars who are guaranteed the freedom to think, explore, and speak without fear of retribution. Trustees, college presidents, and other political overseers best serve the public interest by cultivating that virtue. When trustees and college officials bring personal whim into their decisions—that is, they believe that they may dismiss their “hired men” at any time—they are violating that public trust and are being derelict in their public duty.

It is not so much that tenure is a protection for academic freedom, which, in any event, has a complex and evolving architecture. What tenure is intended to defend against, rather, is the “hired man” concept of college faculty. This is the largely forgotten principle that tenure is intended to defend.

What we have been witnessing over the past several years is a regression to the pre-1915 “hired man” concept of faculty, but now with a different set of masters. No longer will the hired men (and women) serve at the pleasure of whimsical college presidents and trustees. Instead, they must satisfy political masters who demand conformity to a whimsical political agenda. This is why Melissa Click could enjoy protection, but Brett Weinstein could not. Effective reform of the university, which will turn on effective reform of tenure, must focus on reversing the regression to the hired man concept of the faculty. Allowing the debate to be diverted into counterproductive proposals to manage tenure, or into complex and largely unresolvable debates over the nature of academic freedom, is to lose the battle at its outset.

The “hired man” concept is problematic because it sets two disparate sets of interests into direct opposition. The scholar desires intellectual freedom, while the university that employs him wishes to defend the institution’s interests and reputation. The two do not always match and, in fact, should not always match. Even so, the professor remains an employee of the university, which makes the AAUP conception of tenure a polite fiction, dependent ultimately on the whim of administrators to tolerate the independence of their faculty. In other words, tenure has no teeth, and offers no real protection for faculty.

As long as universities and colleges were small and functioned as entities unto themselves, the polite fiction could be sustained. As universities and colleges have increasingly become clients of the welfare state, ever more dependent upon the government for their survival, the stakes have increased, and the institutional tolerance for academic freedom has commensurably diminished.

Effective reform of the academy, therefore, will work to disentangle the conflicting interests of scholars and the institutions where they work. Tenure will only provide the protection it is supposed to when faculty can wield effective power against the academy’s political overseers. It is up to the professors themselves to avoid becoming “hired men.”

Here is my modest proposal for doing so. Effective political power is secured through equity. Not the phony “Equity” that is part of the “Diversity” and “Inclusion” mantra, but real equity: wealth. In this, faculty can learn something from colleagues in other professions, such as law or the entrepreneurial private sector.

We can take law firms as an example. Law firms are generally organized as privately-held corporations, structured for self-governance, like faculties supposedly are. There are other similarities: a law firm (read, a faculty) consists of ranked classes of partners (professors), with varying equity stakes in the firm (a faculty, or a college in a university). Law firms have ordered procedures, just like university faculties do, for recruiting and advancing partners up the ranks. Here is the important distinction between a university faculty and a law firm. The positions of the partners in a law firm are secured not by empty promises that can be revoked at any time, but by their equity stakes in the firm. This ensures that the partners will work to sustain and grow the firm’s value, and it is the partners who determine what gives the firm value. This also restrains law firms from engaging in frivolous or arbitrary actions against inconvenient or dissenting partners, because doing so can come at substantial financial cost. Driving an inconvenient partner out of a firm, for example, means buying out that partner’s equity share. For senior partners of a law firm, the cost of a buyout can be substantial. If a firm is taken over by ideologues, as university faculties presently are, repeated frivolous actions against partners the ideologues don’t like can devalue the firm, reducing everyone’s equity share.

A similar principle applies to the entrepreneurial private sector. An entrepreneurial firm requires a core of creative and energetic people who are eager to take risks. These creatives are often given equity shares in the company in lieu of direct compensation. Mistreating that creative core carries tangible costs in the same way as with partners at law firms. Driving a valued employee out means buying out the person’s vested equity, and it tarnishes the firm’s reputation as a friendly place for the creative, intelligent, and risk-taking to work.

So, I ask: Why can’t the same principles apply to university faculties? Instead of a debased and useless grant of tenure, present deserving faculty with shares—equity—in the academic “firm.” Equity stake would increase with advancement through faculty rank, as it does in law firms. As a professor’s equity builds, that professor’s intellectual independence strengthens, because suppressing that independence becomes increasingly costly.

Academic “firms” could be the equivalent of specialty departments or of groups of like-minded departments. These autonomous entities could negotiate partnerships with universities to provide teaching and research services. If a university administration takes it upon itself to get high-handed with its faculty, as is occurring presently with the Diversity, Inclusion, and Equity mania, the faculty firm can choose to pull up stakes and go to a university that better respects the firm’s unique interests, or it can set itself up as a stand-alone firm. In either instance, faculties would have effective power to wield against attempts to trample their interests and traditions into the dust—power they do not have now.

The argument will be made, of course, that this scheme is naïve and unworkable. That may be true: I’m a scientist and not a businessman. But look where the universities have been brought by the existing system. Could we not do better?