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From the General Secretary: Academic Freedom Without Tenure: New Pathways
By Mary A. Burgan
In issuing its "inquiries" on tenure in the mid 1990s, the New Pathways Project sought to avoid reverting to the old philosophical debates about tenure, according to Russell Edgerton, who was then president of the American Association for Higher Education (AAHE), the project's initiator. The need was, rather, to answer practical questions such as "What career paths are appropriate for the twenty-first-century professoriate?" and "What employment arrangements [are] necessary to one's tenure per se?" These questions appeared in a March 7, 1997, working paper titled "New Pathways: Faculty Careers and Employment in the Twenty-first Century: A Preliminary Statement for Consideration by Colleagues." Some fourteen New Pathways working papers sought to "reframe" the predominance of tenure by justifying the use of part-time and non-tenure-track faculty, advocating rigorous post-tenure review, detailing tenure's lack of popularity among junior faculty, and praising contractual and financial "buy-outs" of tenure.
But the New Pathways project also had something philosophical to say about tenure. This philosophical argument was staged in the fifth position paper of the project, "Academic Freedom Without Tenure?" by J. Peter Byrne, a Georgetown University law professor and a respected commentator on academic freedom. Byrne composed his paper as a thought experiment-making an effort to imagine a school in which academic freedom could be freely and fearlessly exercised without a tenure system.
Perhaps the most interesting fact about his effort was that it had to labor so hard to come to an affirmative conclusion. For one thing, AAUP historical statements on tenure have so carefully covered the issues that Byrne had to agree that alternatives would have a very tough job improving on the AAUP's formulations. Moreover, in suggesting that nontenure systems might be able "to adopt procedures that will still provide legal and practical substance to academic freedom for . . . faculty," his argument insistently returned to the fact that the evaluation of faculty would require some kind of permanent independence for their evaluators. He writes:
In our hypothetical tenureless college, these [evaluating] professors would themselves not be tenured. Their continued employment would rest to some extent on some of the very institutional decision makers whose actions they are reviewing. They simply cannot enjoy the independence of decision making that tenured professors would be able to enjoy. . . . At a minimum, professors serving on such a committee must explicitly be protected against retaliation by the institution; perhaps longer-term contracts or even tenure would be desirable, to give them adequate independence. (Emphasis added.)
Byrne's problem in imagining a system that could protect academic freedom without tenure thus revolved on the philosophical issue that New Pathways wanted to avoid—the evaluation of intellectual and disciplinary expertise by those who are competent to make such judgments. The AAUP has founded its claims for tenure upon the competence of peer review not only to judge the value of faculty work, but also to protect that expertise from outside or "lay" interference. Without such judgments, knowledge and interpretation become prey to a variety of pressures—commercial, political, ideological. Byrne understood this when he concluded his New Pathways position paper with a warning about the values most at risk in abandoning a culture of tenure: "[I]t is more difficult without tenure to construct alternative procedures that ensure more subtle aspects of academic freedom. Tenure has preserved the preeminence of peer review in faculty evaluation, and that is a powerful safeguard for free inquiry and discussion, as well as a support of intellectual values in higher education."
A misuse of Byrne's thinking about academic freedom was passionately rejected by Byrne himself when he commented on a Virginia appeals court's miscitation of his views in the case of Urofsky v. Gilmore in 2000. Rejecting the court's claim that academic freedom inheres in the institution rather than the scholar's choices, Byrne spoke for the philosophical freedom of the faculty as—now more than ever—required by political necessity. He wrote in the January 5, 2001, issue of the Chronicle of Higher Education: "The distinctive needs and values of the intellectual life of a university have sunk from judicial view, as legal doctrines fashioned for the streets and the market are applied to the classroom or the admissions process without nuanced consideration of how the operations and purposes of higher education are different, and how that difference benefits society."
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