From the President: Can We Defend Tenure, Academic Freedom, and Shared Governance?

By Rudy H. Fichtenbaum

The AAUP has a long history of promoting tenure as a vehicle for defending academic freedom and shared governance. As most of us are aware, both tenure and shared governance are under attack, with dire consequences for academic freedom.

The public largely views tenure as a lifetime guarantee of employment, a privilege that protects incompetent faculty. Sadly, we have done a poor job of educating the public about the real purpose of tenure and the benefits of academic freedom. Consequently, when tenure and academic freedom are attacked, the public does not often come to our defense. Most people cannot simply say whatever they want at work, so why, they wonder, do faculty deserve special treatment?

If I were to ask my students whether Americans have the right to free speech, I am confident most would say yes. If you ask your students what guarantees our free speech, most will probably cite the First Amendment.

But we faculty should know that the First Amendment does not guarantee freedom of speech to everyone in every circumstance. The First Amendment guarantees only that the government will make no law “abridging freedom of speech.” Freedom of speech in the private-sector workplace is another matter altogether. Ask any private-sector employee without the protection of a collective bargaining agreement whether he or she can simply tell the boss what he or she thinks. You’ll probably get an answer like, “Are you kidding?” All such employees know that they can be fired for what they say at work. Why? Because most are at-will employees.

The only protected workplace speech for nonunionized private-sector employees is that which arises from concerted activity to improve pay or working conditions. You can’t be fired (at least in theory) if a group of you asks your boss, say, for a pay increase or for safer working conditions. Generally, as long as your activity involves at least one other employee and does not center on a personal gripe but instead concerns wages or working conditions, your speech is protected. But make a complaint as an individual or express your political views and you can legally be shown the door.

Now, we all know that there are rights and there are rights. Everyone has a right to a trial by a jury of peers. In reality, though, defendants lacking money to hire good lawyers are more likely to settle for a plea bargain. In the workplace, even though concerted activity is protected, employers routinely violate the law and fire employees anyway.

Adam Smith recognized the inherent power of employers in disputes with employees. In The Wealth of Nations, he wrote, “In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment. In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate.” The employer’s ability to hold out longer in disputes provides economic power to the employer—power that can be used to limit the speech of nonunionized employees. The government cannot punish you for what you say, but an employer certainly can punish nonunionized employees whenever the employer disagrees with social or political views they express. Persons of independent means aside, free speech is inherently limited.

The protections provided by tenure and more generally by academic freedom therefore extend well beyond the rights of many of our fellow citizens. So, it behooves us to explain to the public that tenure and academic freedom do more than protect faculty as individuals; they help ensure that institutions of higher education actually serve the public interest. Compared with nonunionized private-sector workplaces, universities and colleges are bastions for the uninhibited free exchange of ideas. The corporatization of higher education and attacks on faculty rights are part of a movement to put profits before people, a movement that would impose on faculty members limitations on free speech like those described above.

We should do more than merely justify tenure and academic freedom to the public. We are not likely to be successful in defending our rights as faculty unless we also stand for the rights of all employees against the vagaries of at-will employment; we will certainly not be on the moral high ground unless we do so. All of us should see that an injury to one is an injury to all.