By Donna R. Euben, AAUP Counsel
I. What Is Tenure, Anyway?
"The exact meaning and intent of this so-called tenure policy eludes us. Its vaporous objectives, purposes, and procedures are lost in a fog of nebulous verbiage." Worzella v. Board of Regents, 77 S.D. 447, 93 N.W.2d 411, 412 (S.D. S.Ct. 1958).
"[T]he concept [of tenure] is the product of historical experience and long debate. Its adoption is not merely a reflection of solicitude for the staffs of academic institutions, but of concern for the general welfare by providing for the benefits of uninhibited scholarship and its free dissemination. The security provided therefore by the consensus of learned authority should not be indifferently regarded." AAUP v. Bloomfield College, 322 A.2d 846, 853-54 (N.J. Super. 1974).
The 1940 Statement of Principles on Academic Freedom and Tenure and other AAUP policy recommendations speak to tenure, and the Recommended Institutional Regulations (RIR) speak to the termination of tenured appointments. The 1940 Statement was formulated in conjunction with the Association of American Colleges (now called the Association of American Colleges and Universities) and has been endorsed by over 180 professional and scholarly groups. "Probably because it was formulated by both administrators and professors, all of the secondary authorities seem to agree it [the 1940 Statement] is the most widely-accepted academic definition of tenure." Krotkoff v. Goucher College, 585 F.2d 675, 679 (4th Cir. 1978). The 1940 Statement provides: "After the expiration of a probationary period, teachers . . . should have permanent or continuous tenure, and their service should be terminated only for adequate cause . . . or under extraordinary circumstances because of financial exigencies."
As Professor William Van Alstyne wrote:
Tenure, accurately and unequivocally defined, lays no claim whatever to a guarantee of lifetime employment. Rather, tenure provides only that no person continuously retained as a full-time faculty member beyond a specified lengthy period of probationary service may thereafter be dismissed without adequate cause. . . . [T]enure is translatable as a statement of formal assurance that . . . the individual's professional security and academic freedom will not be placed in question without the observance of full academic due process.
W. Van Alstyne, "Tenure: A Summary, Explanation, and 'Defense,'" AAUP BULL. 57:329 (1971), reprinted in Matthew W. Finkin, THE CASE FOR TENURE 3, 4 (1996) (emphasis added).
According to 1998 figures from the U.S. Department of Education, nearly all universities (doctoral and comprehensive) have tenure systems, as do the majority of private baccalaureate colleges and community colleges. Andrea Berger, Rita Kirshstein & Elizabeth Rose, U.S. Department of Education, National Center for Education Statistics, Institutional Polices and Practices: Findings from the 1999 National Study of Postsecondary Faculty, Institution Survey 31 NCES 2001-201 (2001) (hereafter NCES 2001).
Faculty tenure in higher education is, in its essence, a presumption of competence and continuing service that can be overcome only if specified conditions are met. Faculty tenure is similar to civil service protection and to judicial tenure. It is not a lifetime guarantee of a position.
Tenure is usually provided for in:
an institution's governing documents (bylaws, state statutes, etc.);
the faculty handbook;
an individual faculty member's letter of appointment; and/or
if applicable, collective bargaining agreements.
Tenure is usually granted through an institution's formal affirmative decision, after review of the candidate's qualifications under stated criteria. Evaluation by faculty colleagues is central to the process, although the final action is usually made by the governing board. De facto tenure, supported by AAUP but not typically endorsed in the courts, provides for tenure upon exceeding seven years of full-time faculty service. See "De Facto Tenure."
AAUP calls for all full-time faculty appointments to be either tenure track (also called probationary) or tenured, except for special appointments "clearly designated at the outset as involving only a brief association with the institution." Statement on Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments (AAUP POLICY DOCUMENTS AND REPORTS 15) (hereafter "Redbook"). In practice, however, recent years have seen an increase in full-time non-tenure-track faculty positions at many institutions. In the fall of 1998, 28% of full-time faculty were in positions that were not on the tenure track. Moreover, the proportion of recent full-time hires with appointments off the tenure track is expanding rapidly, at the same time that the use of part-time faculty continues to grow. Basmat Parsad and Denise Glover, U.S. Department of Education, National Center for Education Statistics, Tenure Status of Postsecondary Instructional Faculty and Staff: 1992-98 6 (Table 2) (NCES 2002-210) (2002).
II. Acceptable Grounds for Dismissal of Tenured Faculty
A faculty member may voluntarily relinquish tenure through resignation or retirement. The institution may terminate a tenured appointment through dismissal for cause, discontinuance of a program, or institution-wide financial exigency. Tenure is "not generally understood to preclude demonstrably bona fide dismissal for financial reasons." Krotkoff, 585 F.2d 679.
A. The Acceptable Grounds
Dismissal for cause.
Institutions adopt their own substantive criteria constituting cause for dismissal. These typically include neglect of duty, incompetence, and professional or personal misconduct.
When an academic program or department is eliminated, the appointments of affected faculty may be terminated when no alternative positions exist at the institution. The program must be completely, rather than partially, eliminated and the reasons for the action must be primarily educational.
Example: The University of Puerto Rico eliminated a pilot program in physical education and recreation. The positions of two professors were eliminated, and the professors sued the institution, alleging that the administration violated their due process rights in implementing the terminations. The federal appellate court ruled that unless a state statute or university regulation provided otherwise, the professors' contracts were to be "interpreted as giving the University of Puerto Rico an implied right of bona fide unavoidable termination on the ground of change of academic program." The court concluded that "an institution of higher education has an implied contractual right to make in good faith an unavoidable termination of right to the employment of a tenured member of the faculty when his position is being eliminated as part of a change in academic program." Jimenez v. Almodovar, 650 F.2d 363 (1st Cir. 1981)
When the institution faces a condition of financial exigency, defined by AAUP as "a severe crisis threatening the survival of the institution as a whole," tenured faculty appointments may be terminated if no alternative positions exist for the individual in the institution.
Example: Professor Katz sued Georgetown University, claiming that his contract was breached because he was not provided the proper one-year notice of his termination. The university responded that he was properly terminated due to financial exigency and, therefore, he was not entitled to one-year's notice in advance of dismissal. The court ultimately ruled in favor of the university on the notice issue only. The court reasoned that the faculty handbook clearly provided that a faculty member's appointment may be terminated "for grave economic stringency on the part of the University," and that "no one-year notice requirement . . . limits this provision." Moreover, the university had offered the professor a "severance buy-out" of $750,000, which was $250,000 more than his $500,000 salary at the university. Katz v. Georgetown University, 246 F.3d 685 (D.C. Cir. 2001).
Various procedural requirements accompany each of these categories. The institution bears the burden of proving the need to terminate a tenured appointment, although the nature of the required proof differs depending on which type of termination is involved. Recommended Institutional Regulations on Academic Freedom and Tenure (RIR) 4 & 5. Minimal procedures include (1) a pre-termination hearing before a body of faculty peers and (2) deference to a faculty role in institutional governance. See generally Joint Statement on Government of Colleges and Universities.
B. Some Practical Suggestions
Administration and faculty should work together to develop clear, written policies governing how to handle financial exigency and program discontinuance.
Whether or not the institution's documents mandate faculty participation, a wise administration will conform with principles of shared governance and involve faculty early in the process of making decisions regarding financial concerns. In so doing, the faculty should be provided with sufficient information to participate meaningfully in such discussions.
If you are facing financial difficulties, explore the creation of early retirement programs.
When moving to terminate faculty appointments, apply policies in a consistent and non-discriminatory fashion, and observe all notice and severance pay requirements.
Follow institutional policies carefully to ensure the provision of adequate due process protections to faculty members designated for release.
III. What's the Point of Tenure?
Is it meant to let professors "think (or idle) in ill-paid peace, accountable to nobody"? Economist, "The Tenure Temptation," February 28, 1987, quoted in Henry Rosovsky, The University: An Owner's Manual (1990). No. Faculty tenure serves two primary purposes, the protection of academic freedom and the provision of economic security. The 1940 Statement provides: "Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society."
A. Protection of academic freedom.
Academic freedom serves to permit the unfettered exploration of ideas, which is at the crux of intellectual work. Sometimes administrators stress the need to free institutions from external restraints. This concept is often termed "institutional autonomy." To at least some degree the underpinning for institutional autonomy is that faculty members need freedom in exploring the boundaries of knowledge and in transmitting learning to students. Democracy, as the Supreme Court has reminded us, flourishes when ideas are freely explored and exchanged. For an analysis of the Supreme Court's discussions of academic freedom, see William Van Alstyne, "Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review," 53 LAW AND CONTEMPORARY PROBLEMS 79-154 (Summer 1990).
B. Protection of economic security.
The economic rationale for tenure is less widely known. The possibility of achieving tenure helps attract the most capable individuals into faculty positions which may garner lower salaries than comparable posts in business or government. It is a reasonable arrangement to induce people to undergo long periods of training in highly specialized fields. The result is a system that is economically efficient for both the individual and the institution. Michael S. McPherson and G. Winston, "The Economics of Academic Tenure: A Relational Perspective," in Paying the Piper: Productivity, Incentives, and Financing in U.S. Higher Education by McPherson, Schapiro and Winston (University of Michigan Press, 1993). From the economic standpoint, abolishing tenure would, for example, tend to increase faculty salaries.
IV. Current Challenges to Tenure in Higher Education
A. The Proliferation of Non-Tenure-Track Positions.
Perhaps the most serious challenge to the tenure system in higher education is the vast increase in non-tenure-track positions. Slowly tenure-track and tenured positions are quietly disappearing, giving way to non-tenure-track faculty slots. For fall 1998, the U.S. Department of Education's National Study of Postsecondary Faculty found that, among newly-hired full-time faculty, 55% were not in a tenured or tenure-track position. NCES 2001 (Figure 5.3). Similarly, another study found that a majority of new hires among full-time faculty in 1993, 1995, and 1997 were off the tenure-track. Martin J. Finklestein and Jack H. Schuster, "Assessing the Silent Revolution: How Changing Demographics Are Reshaping the Academic Profession," AAHE Bulletin (Oct. 2002). Finally, a recent study by the American Mathematical Society demonstrates the rapid shift away from tenurable positions in one core discipline: "Between 1995 and 2000, the number of tenured faculty in mathematics departments in four-year colleges and universities dropped by about 3%, the number of tenure-eligible faculty dropped by 6%, and the number of other full-time faculty, i.e., full-time faculty members who are neither tenured nor tenure-eligible, rose by 65%." David J. Lutzer, Statistical abstract of undergraduate programs in the mathematical sciences in the United States: Fall 2000 CBMS Survey, American Mathematical Society (2002). The Department of Education study also found that approximately one-fifth of public research, doctoral, and comprehensive universities had replaced tenured faculty with full-time faculty on fixed-term contracts between 1993 and 1998. NCES 2001 (Table 5.6).
In addition to the shift away from tenurable positions among full-time faculty, the proportion of faculty whose positions are part-time has increased substantially. In 1970, approximately 22% of faculty members were in part-time positions; by 1999 that proportion had grown to 43%. U.S. Department of Education, Digest of Education Statistics 271 (Table 228) (2001).
Together, the categories of part-time and full-time non-tenure-track faculty represent a rapidly growing segment of "contingent faculty," whose appointments are frequently subject to changes in workload, do not include the entire scope of faculty activities, and do not provide a level of economic security sufficient to attract the most qualified persons to the profession. The consequences of a continuing shift away from tenure are likely to be decreased innovation in scholarship and research, along with a reduced commitment to the higher education profession on the part of faculty.
In the end, the issue of "contingent faculty" requires "a clarification of the valid uses of such faculty and the elimination of the misuse of them, not the wholesale abandonment of tenure." Matthew W. Finkin, "The Campaign Against Tenure," Academe 20, 21 (May-June 2000).
B. Evaluation of Tenured Faculty (Post-Tenure Review).
Some critics of the tenure system advocate systematic evaluation of tenured faculty. "Post-tenure review," as it is often called, is also sometimes justified by the elimination of mandatory retirement. If there is no fixed endpoint for tenure, the argument runs, how will we rid ourselves of the incompetent? Although tenured professors are sometimes referred to as "deadwood," the number of poorly performing tenured faculty appears to be minimal. See Henry Rosovsky, The University: An Owner's Manual (1990).
"[A]t most, only 10 percent of the faculty are marginally unproductive." Robert B. Conrad and Louis A. Trosch, "Renewable Tenure," 27 J.L. & EDUC. 551 (1998).
"[L]ess than 2 percent of professors in Texas are really a problem and would need to have this [post-tenure review] system in place either to address their shortcomings, or else be dismissed." Denise K. Magner, "U. of Texas Starts System of Post-Tenure Reviews," The Chronicle of Higher Education (Dec. 20, 1996) (quoting Texas Senator Bivens).
At Georgia State University, only 3.4% of tenured faculty were rated as "marginal" in the 1998-2000 post-tenure review process. Ronald J. Henry, "Getting Out in Front: Cumulative Review and Development for Tenured Faculty," in Christine M. Licata & Joseph C. Morreale, Post-Tenure Faculty Review and Renewal: Experienced Voices 2002 (Washington, D.C.: American Association for Higher Education).
Post-tenure review policies are on the increase. In 1989 the Association of American Universities reported that less than 1% of its membership had a post-tenure review policy. In 1998 the Harvard University Faculty Appointment Policy Archive found that 46% of 192 four-year institutions had post-tenure review. By 2000, 37 states had established some form of post-tenure review.
Such policies have been (1) mandated by state legislatures (such as, Arkansas, Virginia, and California); (2) required by state systems of higher education (such as the University of Arizona, the University of Oregon, and the University of Florida); (3) negotiated in collective bargaining agreements between administrations and faculty unions (such as those for the California State University system, the University of Illinois at Springfield, and the University of Massachusetts), and (4) created "voluntarily" by higher education institutions (such as Drexel University). See generally Association of American Universities, "Post Tenure Review" (Apr. 10, 2001).
There have been some very public battles over administration efforts to impose post-tenure review at such institutions as the University of Minnesota and the University of Massachusetts. See Denise K. Magner, "Fierce Battle Over Tenure at U. of Minnesota Ends Quietly," The Chronicle of Higher Education (June 20, 1997); Jennifer Jacobson, "Faculty Senate at Northeastern U. Rejects Plan to Allow Firing of tenured Professors," The Chronicle of Higher Education (June 4, 2001).
1. AAUP Policy
In AAUP's view, any additional systems to be developed for evaluation are best directed toward constructive measures for improvement.
AAUP's report, "Post-Tenure Review: An AAUP Response," sets "minimum standards for good practice if a formal system of post-tenure review is established."
Some key concepts that are embodied in that report include: (1) post-tenure review should not be a smokescreen for revisiting a tenure decision; (2) faculty should have the primary responsibility in developing and conducting such reviews; and (3) the dismissal standard should remain "just cause," and all procedural standards should apply to the dismissal process.
In a 1983 address on post-tenure evaluation President Harold Shapiro of Princeton University pointed to nurturing the professional development of faculty. "Such practices can be especially effective, in my judgment, if they take on a demanding but positive tone. I believe, however, that we should disconnect such ongoing periodic evaluations from the question of tenure itself. Any attempt to link the issue of tenure and periodic evaluation of tenured faculty, no matter how well-meaning, is, in my judgment, unlikely to strengthen our institutions." "Privilege and the Responsibility: Some Reflections on the Nature, Function, and Future of Academic Tenure," Academe: Bulletin of the American Association of University Professors 3a (Nov.-Dec. 1983).
2. Some Post-Tenure Review Policies
Those policies that exist tend to be either "periodic" or "selective."
An example of a periodic tenure review policy is that of Rice University: "Professors (including department chairs) will be reviewed at least every five years and associate professors with tenure (including department chairs) will be reviewed at least every three years."
An example of a "selective" post-tenure review policy is the one at Indiana University-Purdue University, Indianapolis: "The review process is initiated at the school level when at least two consecutive annual reviews indicated that a faculty member or librarian's performance is unsatisfactory, as defined by his or her school or library."
An example of a "mixed" post-tenure review policy is that of Colorado State University: "Phase I Comprehensive Performance Reviews of all tenured faculty shall be conducted by the department head at intervals of five years following the acquisition of tenure or if there are two unsatisfactory annual reviews within a five-year review period."
3. Some Legal Issues
Very few courts have directly addressed legal challenges by tenured faculty to the establishment or implementation of post-tenure review policies.
Example: The faculty challenged the imposition of a post-tenure review policy as unconstitutional because the policy retroactively changed their tenure contracts. The faculty sought a five-year delay in implementation of the policy. The court upheld the periodic evaluation policy, finding that faculty are always subject to review and discipline. Accordingly, the court held that the post-tenure review was merely a procedural change that "does not take away any vested right, and it imposes no new obligations or duties." The court also found that the fact that the policy allowed consideration of past annual reviews did not make the policy retrospective. Johnson v. Colorado State Board of Agriculture, 15 P.3d 309 (Colo. Ct. App. 2000).
4. Some Practical Suggestions
Be aware that "selective" post-tenure review evaluations (as opposed to periodic ones) may raise the specter of impermissible age discrimination.
Post-tenure review policies should be developed and implemented by faculty members.
Resources must be allocated to support the professional development of faculty under such policies.
Such policies should provide an opportunity for faculty members to comment and respond to such evaluations, as well as an appeals procedure by which to challenge such evaluations.
Successful post-tenure review policies should reaffirm an institution's commitment to academic freedom and tenure; establish and apply standards consistently and fairly; and train participants in the process, including department chairs and deans.
C. Changes in Medical Care and Medical Schools.
Because one of the purposes of tenure is to provide economic security, the medical school experience is a helpful context in which to examine litigation resulting from some cost-cutting efforts that impact tenure.
1. AAUP Policy.
The AAUP maintains that "all tenured and tenure-track faculty [at medical schools] should be guaranteed an assured minimum salary adequate to the maintenance of support at a level appropriate to faculty members in the basic sciences, and not merely a token stipend, on a formula to be determined by the administration and board of trustees after consultation with a representative body of the faculty." AAUP, Tenure in the Medical School, REDBOOK at 103. In addition, non-tenure-track faculty, such as clinicians, "should have a contractually enforceable expectation of a stipulated salary which cannot be unilaterally or arbitrarily abridged during the appointment period." Id.
2. Some Case Law.
Example: In 1997 the Georgetown University medical school issued a new policy for medical school faculty, tying compensation to "income generating" activities and grant money that, apparently, would have required researchers to raise 70 percent of their salaries through grants. After winning their grievances before two faculty panels, which the administration rejected, the twelve medical school faculty sued the university in D.C. Superior Court. The professors asserted a number of claims, including breach of their tenure contracts. In May 1999 the parties settled the lawsuit and, according to the media, the settlement agreement provided for the withdrawal of the proposed compensation policy, payment of the professors' lawyers fees, and compensation for two professors' lost income. "Georgetown U. Settles Medical Professors' Lawsuit Over Compensation," The Chronicle of Higher Education (July 9, 1999). According to the lead plaintiff, Professor Glazer, the settlement allows the professors "to bypass the grievance process and go straight to court" if there is a "reincarnation" of the compensation policy. "Science Scope," Science, Vol. 284 (June 11, 1999). Glazer v. Georgetown University, CA No. 0000321-99 (D.C. Sup. Ct., Nov. 14, 1999).
Example: A tenured medical faulty member on a "soft-money" appointment challenged the administration's decision to eliminate his salary. The parties agreed that Professor Kirschenbaum was tenured. The court upheld Northwestern University's right not to pay the tenured professor based on the university's faculty handbook for medical school faculty, which specifically provided for "zero-based" salaries for tenured professors in the medical school. Kirschenbaum v. Northwestern University, 728 N.E.2d 752 (Ill. App. Ct. 2000)
For a helpful overview of policy and legal issues in medical schools, see Lawrence White, "Academic Tenure: Its Historical and Legal Meanings in the United States and Its Relationship to the Compensation of Medical School Faculty Members," 44 ST. LOUIS UNIV. L.J. 51 (2000); see also Donna R. Euben, "Doctors in Court? Salary Reduction Litigation," ACADEME 87 (Nov.-Dec. 1999.)
V. The "Buy Out" Option: An Alternative to Tenure?
Within the last decade, a few commentators have suggested that to the extent that tenure is a means to protect academic freedom of faculty, alternatives exist. Professor Richard Chait of the Harvard Graduate School of Education has argued that "tenure and academic freedom can be uncoupled." Richard Chait, "Why Academe Needs More Employment Options," The Chronicle of Higher Education (Feb. 7, 1997) (emphasis in original). See generally Richard P. Chait, THE QUESTIONS OF TENURE 2002 (Cambridge, MA: Harvard University Press). He argues: "[W]hy not afford more professors the opportunity to voluntarily accept a term contract in return for a higher salary. . . .?" For a general (and energetic) response to Chait's arguments, see Matthew W. Finkin, The Case for Tenure 1996 (Ithaca, NY: Cornell University Press) and Matthew W. Finkin, "The Assault on Faculty Independence," Academe 16-21 (July-Aug. 1997).
Apparently few institutions have promoted the buy out option. However, there are two institutions that have had some experience with this approach: the University of Central Arkansas and Boston University's School of Management.
A. University of Central Arkansas
Starting in 1999-2000, then-President Winfred Thompson proposed an alternative to tenure that would, according to one estimate, provide "a new assistant professor . . . with approximately $20,000 more in initial base salary by giving up eligibility for tenure. . . ." AAUP, "Academic Freedom and Tenure: University of Central Arkansas," Academe 101, 112 (May-June 2000). The university "has had to date no takers for a non-tenure track option that includes a sizable salary premium but lacks the requirement that faculty be judged tenurable in order to secure a long-term contract." THE QUESTIONS OF TENURE at 316.
Professor Robert Gorman, former president of both the AAUP and the Association of American Law Schools, strongly criticized the buy out option:
This is a horrific proposal, akin to suggesting that faculty relinquish for cash their right to speak critically of university policies, or of the scholarly views of certain colleagues, or on issues of national moment. Tenure for the faculty member is a means to a larger social end.
Concurring with Professor Gorman's assessment, the AAUP's annual meeting voted to censure the university for a number of reasons, including that it found the buy-out policy "inimical to principles of academic freedom and tenure." "Academic Freedom and Tenure: University of Central Arkansas" at 113; see also Matthew W. Finkin, "Tenure and the Entrepreneurial Academy," Academe 14, 20-22, (Jan.-Feb. 1998).
B. Boston University School of Management
In 1996 this professional school created an alternative plan that provides for a ten-year renewable contract and a salary premium of 8-10% for professors "who have, or otherwise eligible to have, tenure." Charles T. Clotfelter, "Can Faculty Be Induced to Relinquish Tenure," in THE QUESTIONS OF TENURE at 230. As of March 2000 a total of nine faculty members (50%) accepted the alternative-to-tenure contract. Id. at 243.
Henry Rosovsky, THE UNIVERSITY: AN OWNER'S MANUAL 183-84 (1990) (emphasis in original):
For me, the essence of academic tenure lies in . . . [the notion of] tenure as social contract: an appropriate and essential form of social contract in universities. It is appropriate because the advantages outweigh the disadvantages. It is essential because the absence of tenure would, in the long run, lower the quality of a faculty. And faculty quality is the keystone of university life. The best faculty will attract the ablest students, produce the finest alumni, generate the most research support, and so on. . . .
Our jobs—as senior professors at major universities—require high intelligence, special talents, and initiative. These attributes are in general demand: business, law, medicine, and other professions are looking for people with similar characteristics. And some of these careers promise, at considerable risk, far greater financial rewards. . . .
In my view, tenure carries the implication of joining an extended family; that is the social contract. Each side can seek a divorce: the university only in the most extraordinary circumstances, and the professor as easily as a male under Islamic law. It is not an uneven bargain because the university needs its share of talented people, and professors trade life-long security and familial relations for lesser economic rewards.