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Thursday, August 19, 2010

The case against academic tenure

Brian Leiter has been making intemperate attacks on critics of tenure lately. His immediate target is Mark Taylor, whose proposals to abolish tenure won him a lot of academic ire. Brian and I both dislike the style and substance of Taylor's type of philosophical work, so I attribute some of Brian's sharpness of tone to the admitted egregiousness of his target's prose. But Brian's arguments for tenure do not, I think, stand much scrutiny.

The core of Brian's argument is that tenure protects professors' right to say or write controversial things. But I do not see why professorial freedom of expression could not be adequately safeguarded by a much narrower rule barring dismissal for viewpoint-related reasons. This sort of First Amendment-style protection would safeguard professors' rights to make controversial statements without providing gratuitous insulation for professors who are simply lazy, incompetent, or corrupt. Why not require the sacked prof to set forth a prima facie case that their dismissal was the result of something controversial that they said or wrote? This burden could be light: The plaintiff might simply proffer something -- anything -- written or said within a year or so of dismissal that could remotely be regarded as controversial. The employer would then bear the burden of showing that the dismissal was unrelated to the proffered writing or utterance. Think of such a burden-shifting framework as roughly analogous to the Griggs disparate-impact test. The benefit of such a rule is that it not only makes dismissal of incompetent, lazy, or corrupt professors easier but also gives all profs more of an incentive to write controversial stuff, if only to have a prima facie case when the pink slip shows up in the mailbox.

In any case, I would not want to be accused of hypocrisy like the hapless Taylor who offered his tenure-abolishing proposal only after he retired. So I hereby urge that everyone's tenure -- including my own -- be revoked, to be replaced by my First Amendment-burden shifting alternative. By all means, let me know why my proposal is a bad idea with full-blooded Leiter-esque scorn. (Your words won't disconcert me, as I've already produced my prima facie case -- in this post! -- protecting me from dismissal in a post-tenure world). But, if you are inclined to criticize my position (or prose or personality), please avoid the following fallacies (after the jump).

1. "One has a 'blatant conflict of interest' in urging the abolition of tenure if one no longer has an interest in preserving it because one is retiring, or because one has an interest in an alternative system of retaining academic employees." Brian makes this assertion twice -- once, because Taylor attacked tenure upon retirement and a second time because Taylor apparently was involved in marketing online education. But the obvious response is: Tu Quoque. Any currently tenured prof has a conflict of interest far more blatant than Taylor's: They benefit enormously from the system that they are defending. Indeed, this benefit likely explains the passion with which profs have laid into Taylor. By contrast, a retired guy has no dog in the fight one way or the other.

2. "The administrative costs of policing Hills' First Amendment rule would be too high, because adjudicators would have to discern the motive underlying the dismissal." Given that Brian wants to strengthen dismissal "for cause", this complaint is not available to him, because "for cause" dismissal always requires inquiry into the reason for firing someone. Indeed, I think that Brian's unspecified strengthening of "for-cause" dismissal and my own First Amendment proposal would roughly converge, as the "cause" justifying dismissal should generally include any good-faith, basically legitimate work-related reason, which would exclude few justifications other than the professors' controversial expression under my proposal.

3. "Being an academic is so very different from every other kind of employment that the normal discipline of being threatened with termination for being lazy or incompetent is somehow unnecessary." Brian quoted approvingly a post by Marc Bosquet who essentially suggests that, like families, neighborhoods, poker games, churches, etc, faculties are one of those social organizations and relations that just should not be governed by the market. Brian regarded this paragraph as a "fine excoriation," but it strikes me as a fine example of the sort of shrill, lazy posturing that one would expect from someone with a vested interest in preserving an institution that they are defending. Faculties provide services in return for salaries, Marc: The analogy between profs and other employees is obviously much closer than the analogy to relationships that lie outside the marketplace. So stop picking on that straw man of universal commodification, and address the real issue: Explain why this one sort of professional employee should get protections denied to virtually every other highly educated person who writes and speaks for a living -- journalists, lawyers, doctors, priests, businesspeople of every stripe, salesmen, actors, etc. The profusion of market-like incentives in academia -- summer research money, for instance -- suggests that, like other employees, profs respond to normal business incentives in the usual way.

4. "The market sucks: We should not abolish tenure for academics but rather should extend tenure to every other sort of employee." Much of the diatribes by academics defending tenure have this anti-market tone -- which is fine by me: Of course, if you think that the retention arrangements ordinarily produced by labor markets generally fail, then they probably fail for academics as well. Assuming, however, that you, as a consumer, appreciate the power to fire your plumber, lawyer, doctor, etc., when you believe that they provide poor service, why should not universities, representing their tuition-paying customers, not have a similar prerogative? In other words, do you have an argument for why faculties are so different from other sorts of professional employment that they should be governed by a radically different retention regime? If so, why would this difference not be satisfied by my First Amendment rule?

5. "Why rock the boat? There really is no problem with lazy, incompetent, or corrupt profs -- and critics of tenure have not produced data to suggest a problem." The argument that critics of tenure lack data of a productivity problem with tenured profs invites a game of "presumption tennis": The defenders of tenure lack data showing that there is not a problem with tenure, so why is the ball not in their court to produce data? Who bears the burden of proof here? Tenure is, after all, an extraordinary departure from the norms governing ordinary employment. It deserves an extraordinary justification. Getting reliable data about faculty misbehavior is extremely difficult: How many deans would voluntarily provide accurate information about the presence on their faculty of repeat sexual harassers, chronically tardy and unprepared teachers, members who had not published in decades, committee members who did not bother showing up for meetings, profs who were routinely months late getting their exams graded, and so forth? Such actions impose extraordinary costs on an institution, shaming it in the eyes of students, alumni, and administrators. I have seen all of these tendencies among academics, but, for obvious reasons, I am not naming names or even counting noses. So just yelling, "the ball's in your court to produce data" when data's not to be had is not sufficient to justify a practice that would intuitively seem to produce perverse incentives in at least a significant number of cases. (If you think that ordinary employment rules don't apply, please re-read (3) above).

6. "Tenure is not a 'job for life,' as there is always "for-cause" dismissal." Brian actually wrote this down in a place where the general public can read it. If typescript could blush, this assertion would glow bright red. Come on, Brian. You and I have been in this academic racket long enough to know that scraping a a tenured prof out of his position "for cause" is as easy as scraping meaning out of Judith Butler's prose: It takes forever, and, in the end, it is not worth the effort. (Okay, a gratuitous slap for which I preemptively apologize: Insert your least favorite unintelligible philosopher or social theorist if you are a Butler fan). I have been in this business for sixteen years now, and I have never -- never -- seen a prof fired for cause on any of the faculties at which I have visited or been a full-time employee. I have questioned vice deans, associate deans, and full deans assiduously on the question of what it would take to fire someone for cause, and they have uniformly informed me that it would take an act so egregious as to approach a felony to justify the expense and deep embarrassment and trauma of termination proceedings. Yes, this is an anecdote, but I am blogging, not writing a research article. Moreover, I could not get better data if I tried. (If you do not know why, re-read (5) above).

Admittedly, faculties will still face costs in firing slackers under my First Amendment rule. The advantage of my proposal is that, in those cases where plaintiffs could not make their prima facie case, university administrators would not need to air dirty laundry at all, and, in cases where the prima facie case was weak -- say, plaintiffs' platitudinous statements expressing viewpoints that the plaintiffs' colleagues and dean obviously shared -- those administrators could simply respond by showing that the expression could not possibly have been the cause of the dismissal.

But proffering academic freedom as the justification for a retention policy that goes far beyond this purpose requires better justifications than special pleading, presumption tennis, ad hominem and ad personam scurrilities, and other hand-waving techniques that seem prevalent in defenses of academic tenure. These sorts of persuasive only to someone whose job depends on winning the argument.

Posted by Rick Hills on August 19, 2010 at 01:27 PM | Permalink


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This is a very difficult question. My father works at a University, has tenure, but has also dealt with colleagues who have had tenure but could not be disciplined for poor work.

Here's the dilemma -- tenure reduces the flexibility of a University to ensure that its faculty does the work they're supposed to. In other words, does a professor not try to teach his class? Does he show a bunch of movies? Does he regularly turn in grades late or fail to turn them in at all?

Perhaps for-cause situations can remedy this. Not always, though.

At the same time, removing tenure does remove aspects of academic freedom. Sure, most professors do not run into these problems. Nevertheless, there have been some recent high-profile clashes between faculty and administration. The DePaul Law School situation involving the firing of their Dean.

Sure, there are situations like Ward Churchill's at Colorado, but the DePaul conflict highlights the benefits of tenure protection. I do believe that the DePaul president would love to be able to silently remove a number of folks who have been critical of his actions regarding the law school.

Tenure prevents this. And it benefits more than the professor. If DePaul's president had gone off the handle and fired, say, all 15 or so of the professors who signed a letter to the ABA then there would be utter chaos at the school. The school's students would suffer. It's alumni would suffer. The school itself would suffer.

Tenure protection prevents DePaul's president from doing such a knee-jerk reaction. It allows cooler heads to prevail, and it forces things to be worked out more amicably. All sides, in the end, win.

Having said that, perhaps there are better ways to approach tenure. For example, perhaps there could be tenure-like contracts based on a period of time. Say, ten years of employment protected by tenure with an option for a renewal.

Another possible solution would be to have levels of employment that are protected by tenure, and levels not protected. By this I mean make payment a base amount with increases conditional on performance. Therefore, schools are not stuck with professors who can't teach classes they need, but can only teach outdated classes (and who refuse to update their skills). The professor is given a base, then for each class he can cover (and does cover) he gets an increase.

You can make incentive-based payments count to more than classes, too. Secure a federal grant to do a prominent research study? Great, you get more than your base salary.

These are kind of half-cocked, seat-of-the-pants solutions. I do not pretend that they are fully thought out, but I do believe they show that, perhaps, the current tenure system as most-widely adopted might be modifiable.

There should be a way to balance the interests of the school itself against protections from angry, retributive, or just plain bad administrators.

In short -- I think re-examining the nature of tenure is worth it.

Posted by: John Nelson | Aug 24, 2010 3:03:38 PM

I will risk the chance that this will seem like self promotion because I wrote the posts. A further discussion of the debate over tenure and the proposal currently before the Standards Review Committee of the Council on Legal Education can be found on the blog maintained by the Society of American Law Teachers. www.saltlaw.org/blog

Posted by: Deborah Post | Aug 20, 2010 1:52:01 PM

Also, the get-tenure-doing-orthodox-work-then-do-hetrodox-work story only supports the current version of tenure if you are willing to throw professional ethics out the window.

Academics almost certainly have an obligation to act in good faith, which means arguing for the revolutionary idea when it first comes to you -- and those Big Ideas tend to come to you when you are new to a field.

More to the point, how could any aspiring academic argue that the suppression of ideas for the sake of professional advancement is a good idea?

Posted by: Mike | Aug 20, 2010 1:15:22 PM

If reforming the tenure system would be good for the advance of learning because it would lead to greater chances for inter-generational competition and create an environment more hospitable to intellectual diversity, why should faculty members be spared the disciplining forces of the market?

And, if courts have figured out a way to judge whether for-cause dismissals are legitimate for physicians and attorneys, why is it that you assume that the evaluation of professorial terminations poses an insurmountable problem?

Posted by: Mike | Aug 20, 2010 1:06:32 PM

Perhaps more than in law, in academic fields that require a PhD, the ‘economic value of tenure’ argument seems promising. Let’s assume that we want some of our brightest people working (researching and teaching) at colleges and universities, institutions which are (happily!) located all across the country.

Bright people have lots of possible career options, and will choose amongst those options based on a number of different considerations. Prominently: (a) money, (b) work/life balance, (c) intrinsic interest of the career, (d) job security, (e) geographic fit (if you want to live in a city you can live in a city, and so on), (f) investment required to get into the career, (g) likelihood of return on that investment.

With tenure, academic jobs score very well on (b), (c), and (d), and they do rather poorly (given other options) regarding (a), (e), (f), and (g). Getting a PhD requires one to basically forego income, savings, and investment for 6 or 7 crucial employment years, all for a rather long shot at getting a relatively low paying job anywhere at all, let alone anywhere geographically well suited to one's other interests and ties.

Still, this might quite reasonably be ‘worth it’ because of (b), (c), and (d). But, as Scott notes, the balance starts to tip once (d) is eliminated. The only way that I can see compensating for the loss of (d) is to improve one of (a), (e), (f), or (g). All options are problematic.

It is unlikely that academics will be paid better across the board if tenure is abolished. Where would that money come from? I don’t see the social support necessary to make this option viable. You might trim a bit of ‘dead wood’ from faculty rosters, but those folks still teach on a regular basis, so, if they are not replaced, one might be able to pay the remaining folks more, but you will lower (b)—increasing teaching loads.

You can’t improve geographic fit without sacrificing the ideal of having colleges and universities all over the place (rather than just in the places that many people want to live).

And I don’t see how you can make the PhD investment less considerable without sacrificing the ideal of quality. You could pay people more during their PhD years, but again, where is that money going to come from?

One might be able to dramatically limit the number of PhD programs, improving (g) if one is actually admitted to a PhD program, but then we’d have to get into all the ways in which PhD students save universities a lot of money (through cheap, relatively high quality teaching), and again, where is that money going to come from if the PhD students are gone?

So, if tenure is abolished, what is going to make it rational for bright people to continue to pursue the academic path? I know enough die-hards on the PhD path to think that maybe (b) and (c) on their own will be enough, perhaps with some (h) prestige thrown in. But I would worry, from a general ‘high quality liberal arts education is worth preserving’ perspective, about the actual effects of abolishing tenure.

One possible response to the above is this: if you’re good, you never cared about tenure or that kind of job security anyway. You’ll meet the demands of whatever review process is implemented.

(So, this is now somewhat in response to your question: do you have an argument for why faculties are so different from other sorts of professional employment that they should be governed by a radically different retention regime?)

The short response: unlike with most forms of professional employment, it is very difficult to obtain unproblematic measures of ‘quality of service’ for academics. More to the point, it is hard for a prospective academic to trust that the measures of ‘quality’ used to evaluate her throughout her career will track the actual quality of her work and teaching. (The current system of course introduces some quality hurdles along the way to tenure (getting into a PhD program, getting a job, getting tenure), but once these have been cleared, one is free to pursue one’s research and teaching in the manner one sees as best, and one knows this in advance.)

Given the dubious nature of measures of ‘quality’ for the kind of teaching and research academics are in the business of producing, it is not enough to simply assure prospective academics that there will be a ‘fair’ review process, conducted every 5 years (or whatever). It would be hard to imagine putting much trust in such a system. Unlike in fields such as law, medicine, plumbing, etc., I have very little confidence that some institutional arrangement could be set up that would do a good job sorting for quality—and I am by no means a skeptic that such distinctions of quality can be drawn. If I hire a plumber and the toilet breaks again in a week, and all the reviews of his work identify similar problems, I can be confident that the plumber isn’t very good at his job. But I am not sure what we are supposed to use as the quality ‘check’ for academics, particularly once they have demonstrated that they can meet the basic requirements for getting a degree, job, and tenure.

On the research side, the obvious thing to point to would be peer review or peer assessment. One worry is that, within a particular department, having serious meaningful review every 5 years would lead either to massive factional infighting, or rote rubber-stamping (you scratch my back, I scratch yours), depending on how cohesive the department was. Neither seems good. So you’ll either have to go ‘up’ (meaning that experts in an area are being assessed by non-experts) in the institution (to the dean level or what have you), or go inter-institutional. The former seems problematic, unless those decisionmakers based their decisions on the basis of inter-institutional assessment. So that’s the better option.

But that option is seriously problematic. First, peer reviewed publication, at least in some fields, is a dubious check. Often peer review is not blind (and could not easily be made blind—small communities of scholars, etc.—particularly for later-career scholars), those doing the reviewing have their own horse in the race, truly innovative or groundbreaking work might not be appreciated by those wedded to the status quo, and truly great work might be undervalued because it is not responsive to the latest fads. Lawyers, doctors, and plumbers might be able to make some of the same claims, but at a certain point, if you always lose your cases, if your patients fail to get better, if the pipes always break the next day, those claims start to sound ridiculous. Maybe so with academics as well, but I think we want to encourage innovation, and to allow academics to wander off on their own for a while.

These points are relevant to Mike’s Kuhnian story above. I am not sure how he thinks the market for ‘paradigm-shifting’ ideas is supposed to work in the post-tenure world. (I am not at all convinced that there is significant ‘empirical support’ for the Kuhnian thesis with respect to the core sciences, let alone other academic fields. See Toulmin and others. Additionally, I would like to see the “vast amount of evidence showing that the current version of the tenure system actively retards the advance of learning in some truly devastating ways.”) Pre-shift, those ideas are not going to be in favor, they’ll be harder to get published, recognized, etc. (falling as they do outside of the normal picture), and those individuals charged with making retention decisions will (according to the Kuhnian story) find them wacky. If anything, the Kuhnian story supports tenure. People will have to play the normal science game to get their foot in the door, but, post-tenure, they can go off in all manner of ‘revolutionary’ directions (with institutional resources and support) in a way that would not be permitted by normal market pressures.

Second, there is a real concern about quantity v. quality. The pre-tenure pressure to publish a lot, even if not all of it is one’s very best work, is unfortunate, and it seems very bad to extend this pressure to everyone at all stages of their careers. Work is hurried out the door, leading to mediocre, less-developed scholarship. There is a real strain on reviewers, editors, and others charged with trying to sort the work, meaning that it is rare for more than two or three ‘reviewers’ to make the ultimate assessment (hardly a ‘community’ of scholars). But if we are not simply ‘counting’ publications, then we have to return to the hard assessments of quality.

Again, it is not that these assessments can’t be made, or that there are no correct answers. It is that prospective academics would not be confident that whatever institutional system is put in place will be good at reaching the correct answers reliably enough, particularly over the course of their career, throughout various administration changes, academic fads, economic pressures, and so on.

On the teaching side, student evaluations are notoriously problematic and susceptible to manipulation. Peer evaluation will introduce some of the same problems as above. Student performance based evaluations show more promise, but have been notoriously difficult to implement, even with regard to more straightforward academic skills development at the K-12 level.

None of this is conclusive, but I think that there are real worries about what the non-tenure world would look like, particularly with regard to academic fields in which ‘progress’ is not always easily measured, particularly when that progress is in its infancy.

Posted by: Alex Guerrero | Aug 20, 2010 10:33:40 AM

Rick, as someone teaching in a system that no longer has tenure (the UK), my main objection would be to the characterisation that tenure's main purpose is to protect professors making controversial statements. Sure you are in that respect responding to Brian's post, but your proposal still only protects people fired for such reasons. Realistically, though, being fired for being controversial is far less likely here than being fired for much more mundane reasons, such as pursuing the wrong kind of research (e.g. research that does not generate external funding, or that is just regarded as obscure), or perhaps for taking too long developing a complex position, rather than regularly publishing half-developed articles. Tenure has an enormous role in protecting academic freedoms of this more mundane variety as well. After all, if you have said something controversial and been fired as a result there is a good chance of there being some kind of backlash, and there is protection in that. On the other hand, if the university administrators can simply argue that your work was economically unproductive, or that you were no longer a productive scholar since you published so rarely (even presuming that you had a reason, as stated above), public outcry is going to be far less likely, and less likely to be effective. That at least is the experience over here. Firings are certainly rare, but when they have been threatened (or carried out) it was for one of these mundane reasons. And your proposal just wouldn't offer any protection in such cases at all, which is a real problem since the pressures on academics are then not to avoid controversial statements, but rather to concentrate on certain kinds of research valued by university administrators, rather than to pursue the research they see as most important - a genuine pressure that is consistently felt over here.

Posted by: Tony Cole | Aug 20, 2010 7:50:03 AM

I'm anti-tenure, but I thought Fabio Rojas did a decent job of showing it isn't so unusual:

Posted by: TGGP | Aug 20, 2010 1:32:03 AM

I should also make it clear that I am not for the abolition of tenure.

Tenure allows academics to take risks that would be unacceptable to those outside of the Ivory Tower.

I would, however, make sure that academics gets as a profession, and not as a calling or a club.

To that end, I would make it so those tenured members of the university community have a fiduciary duty running to the advance of learning.

Posted by: Mike | Aug 19, 2010 9:33:54 PM

Peer review is not the only problem.

In law faculties as much as in those of the arts and sciences, academic hires and tenure decisions are made by tenured faculty members behind closed doors.

This, too, has a negative affect upon the advance of learning.

Besides, the stability-as-a-replacement-for-salary argument works only for those who enter the profession with tenure.

Those who enter as assistant professors do not have that same promise of security, for tenure decisions can be made for good cause, bad cause or no cause whatsoever.

Moreover, once someone makes a commitment to an academic career his or her (admittedly real) options in the higher-paying realms become far less of a realistic option.

Besides, why is there such a fear of the market among those who study markets?

Maybe schools, especially those at the top of the food chain, would -- or should -- be willing to pay higher salaries in exchange for less security because that is the best model for them, i.e., it makes them attractive places to attend for those who will donate back after going into large firm practices, corporate in-house jobs, high-level government and judicial work.

Posted by: Mike | Aug 19, 2010 9:10:07 PM

Mike, I have not read the scholarship that you reference, but it seems that the snippet of it that you presented above in your first comment would support the notion that peer review retards the advance of new ideas, and that tenure is a culprit only due to its reliance on peer-reviewed scholarship. If so, I agree, and I would add that exclusivity of submission adds to this problem because it incentivizes one to mold one's scholarship to the current received wisdom so as not to waste a submission (and the resulting wait time for a response). But this is not a flaw of legal scholarship, which mostly does not involve peer review or exclusivity of submission. I have long thought that legal journals are by far the most open to new ideas of all the disciplinary journals. True, this leads to a large amount of shoddy work being published, but the marketplace of ideas sorts that out.

As to your challenges to the salary argument: First, no, the salaries are more comensurate with the first-year salaries of local law firm associates (but they increase much more slowly over time--hence the pay cut that one must take when one leaves after a few years to enter academia). That being said, I see two implied assumptions in your challenge to the salary issue (please correct me if I am wrong).

The first assumption appears to be that law professors do not work many hours. That may be true for some, but most law professors (at least in my generation) work close to the same number of hours per week that they did in private practice. They just have more discretion as to when and where those hours are worked. This flexibility, like tenure, is an important, non-quantifiable term of the employment contract, and it is worth giving up some remuneration to have this flexibility. Others can feel free to disagree, but my best estimate of the number of hours necessary to prep, in good faith, each hour of a law school class is between 5 and 8 (at least 30 non-classroom hours per week for those of us with 6 credit-per-semester loads). This time decreases as one becomes more experienced, but it does not decrease much for those who care about teaching well. Scholarship is done in the remaining work time. Thus, remove scholarly publication from the mix, and you may be right that the job does not require many hours (~36-ish per week, with class time), but I do not read your initial comment as arguing for the abolition of scholarship--just tenure.

The second implied assumption appears to be that law teaching and scholarship are fairly simple, and that the skills necessary for them are commonplace among lawyers. There is no way to know whether this assumption is empirically valid because law professors as a group are remarkably similarly credentialed (most went to top schools, excelled there, and practiced at high levels in firms or government). Thus, I have to concede that you may possibly be operating on a valid assumption there, but I suspect that you are mistaken. In fact, I really don't think such an assumption passes the laugh test to anyone who has even been a law student before, much less a professor.

Considering the competing options that those selected to become law professors generally have (large firm practices, corporate in-house jobs, high-level government and judicial work), universities have two choices: (1) make the non-monetary portions of the job so attractive that these people will work for less than the market is willing to pay them; or (2) pay these people what the market will bear. Either way, I'm fine (as long as faculty have sufficient contractual protections agaist arbitrary or retaliatory dismissals, of course).

Posted by: Scott | Aug 19, 2010 8:49:07 PM

Mike, I meant to imply that you would get someone who loves the job so much that he would do the job for relatively low pay, not that that is the actual salary of a law professor.

Posted by: AnonBusinessPerson | Aug 19, 2010 8:43:46 PM

More important, what about all the evidence that would seem to indicate that the current tenure system retards the advance of learning?

Posted by: Mike | Aug 19, 2010 8:21:37 PM

Is the average starting salary for law professors really $40,000?

Posted by: Mike | Aug 19, 2010 6:20:27 PM

Many of us who write in the tax, business, or commercial law fields would not enter academia in the first instance but for the prospect of tenure. Far more money can be made in the private sector, but tenure helps make up for that.

But perhaps this is a good thing, and business people drawn to the academy because of tenure and other fringe benefits are in it for the wrong reasons. But seeing how bad law schools already are in providing business law training to students, I can't imagine that we should want to further dissuade people coming from business law firms, the SEC, the IRS, and so on. True, you will still get that small slice of people who would write on business law for $40,000 a year and with less job security, but that won't be enough.

Posted by: AnonBusinessPerson | Aug 19, 2010 6:13:48 PM

You know I really wonder about the salary arguments being forwarded in this debate.

Should the amount paid per hour of work be considered as opposed to simple gross salaries, my guess is that law schools would have no problem filling vacancies with competent people even if the tenure system were to be rejected or radically reformed.

Posted by: Mike | Aug 19, 2010 6:09:37 PM

Sure, go ahead and revoke tenure. But you'll have to raise salaries by 30-40% to make up for the loss of job security, to be competitive with the alternative positions out there (at least in my field). What University can afford to do that?

Realistically, tenure is financially a way for Universities to pay professors in many fields (e.g., engineering, science, law) below market wages, in exchange for job security and a lot of control over their own work.

As for academic freedom, I guess I don't fully buy into the burden-shifting approach you mentioned. It might work, or it might not, but I would be reluctant to count on it to work if my job was on the line. (I'd worry it would be too easy for administrators to make up a reason to get rid of someone, and when introducing a new system, it's hard to know how it will play out.) If your proposed new burden-shifting system were introduced, I would find myself more reluctant to speak out on controversial subjects, due to the uncertainty about the effectiveness of the system. So I'm not fully persuaded by your argument that your proposed burden-shifting system would protect academic freedom as effectively as the current system.

Posted by: AnonProf | Aug 19, 2010 5:54:05 PM

Although tending to agree with your proposed reform of the tenure system, I am also pretty sure that bullet point 5 is way off, for there is a vast amount of evidence showing that the current version of the tenure system actively retards the advance of learning in some truly devastating ways.

Empirical studies carried out over the past half century in the wake of Thomas Kuhn’s work have brought to light two extremely typical fact patterns within the history of ideas.

First, the advance of learning tends to happen by fits and starts: Long periods of relative stasis are punctuated by short episodes of great change, and these moments of great intellectual development are set off by the rise of new scholarly paradigms.

Second, a path-breaking theory capable of setting off a paradigm shift: (1) tends to be hit upon by a person who is either young or new to the field; and (2) almost always languishes until either the cohort of recognized experts leading the field to which the new model speaks at the time of its initial formulation gets displaced by a younger generation of scholars, or the piece of scholarship introducing the theory starts being read by those outside of the field non-academics or scholars in unrelated fields.

The chief conditioning factor for these phenomena is obvious: faith -- especially faith in current academic theories, and faith in the current academic system.

The vast majority of academics truly believe in the ability of their preferred theories to account for the facts of their chosen subject of inquiry. Although this devotion to ideas and approaches does have its benefits, the fervor of this faith also makes it all but impossible to convince well-meaning and intellectually gifted people who in good faith are committed to an array of established understandings -- the familiar ways in which familiar explanatory frameworks account for familiar sets of facts -- to see things in a new light, even when the new theory does a much better job of accounting for the facts.

The vast majority of academics continue to believe in the accuracy of the vetting process -- peer review insulated from all governmental oversight -- provided by the academic system as it currently stands, despite the existence of a widespread acknowledgment as to the peer review system’s near inability to recognize the value of new paradigms in a timely fashion. Although this commitment to the lofty ideals of the academic system does have its benefits, it is also means that the most important scholarly ideas will almost certainly be frozen out for too long -- and there is absolutely no reason to believe that all models capable of setting off a paradigm shift are inevitably “rediscovered” after their initial rejection.

In short, the current tenure system is makes college and universities extraordinarily hostile environments for the type of work that does most to advance learning, and so the system should be changed to relativize the power and authority of tenured academics so as to allow for more inter-generational competition.

Posted by: Mike | Aug 19, 2010 5:12:32 PM

Your arguments are well-taken, Prof. Hills (and others), and I tend to agree with point # 6, but do not discount the real monetary value of nearly inviolable job security. Most law professors take a large pay cut to enter academia, and this cut is justified by not only the amazing work-life balance, but also the promise of true job security in perpetuity--including knowing that a change in management will not result in a "house clearing," as happens in so many other industries. Go ahead and revoke tenure, but get ready to negotiate with your productive folks over how to compensate for the loss of this valuable term of employment.

Posted by: Scott | Aug 19, 2010 4:28:46 PM

There's also the argument that just-cause discharge should be the norm in more employment, not less. After all, America is almost alone in among industrial democracies in still using "at-will" employment as a default. And in the U.S., even beyond tenured academics significant swaths of employees (those working under union contracts, public employees working under civil service systems) have just-cause discharge protection.

Posted by: Joseph Slater | Aug 19, 2010 3:30:15 PM

I agree that Rick is a dinosaur.

I have no quarrel with Rick's alternative proposal, as it would surely require something like a "for cause" standard for dismissal.

I did not make the argument under Rick's #1.

The core arguments I actually made, which are partly touched on by Rick (though he takes up various strawmen as well), are in this post:

As the links in this piece make clear, there are lots of reasons for ire about Professor Taylor, and the temperature of my remarks is quite precisely proportional to the subject.

Posted by: Brian | Aug 19, 2010 3:15:03 PM

Thank you, Prof. Hills, for providing a great question for candidates to ask hiring committees at AALS: "Do you subscribe to the Hills or Leiter tenure line?" That should be interesting!

Posted by: Prawfcandidate | Aug 19, 2010 2:30:24 PM

I trust students' market-like incentives more than you do, NewLawProf: They know that employers use school quality as a proxy for student quality, and they have incentives not to trash the standards for fear that the trashing will depreciate their degree.

There is yet a third justification for tenure, NewLawProf, that I should mention -- Protecting dinosaurs like me from Young Turks like you. The problem is that the hiring standards go up every year: Every year, more of the entry-level candidates have peer-reviewed articles, books, Ph.Ds, etc. I think to myself, "if I hire these guys, then they'll give me the sack, because I do not meet the new entry level standards." But then I brighten up: "Hey, I've got tenure! Why not improve the faculty? It is no skin off my nose!"

As long as old-timers do the hiring, there is a reason to retain tenure: It reduces old-timers' incentives to discriminate in favor of mediocrities like themselves. But Brian did not make this sensible argument in favor of tenure, so I did not respond to it.

(My response would have been that old-timers should not sit on the hiring committee unless they are very self-confident about their position on the faculty: The young ones are the people that will have to live with whomever we hire, so they should be in charge of the process. I write this, however, as someone who has sat on the NYU appointments committee for four years' running now, in hopes that maybe my tactless remarks will induce the dean to kick me off).

Posted by: Rick Hills | Aug 19, 2010 2:17:07 PM

An interesting debate, and you adroitly defended your position. Your thesis, though, seems predicated on the presumption that the sole justification for tenure is scholarly freedom. While I have no data to support this, and I am certainly no expert, I think that the real purpose of tenure in the 21st century will be to prevent the termination of professors who don't cow-tow to the new "student-as-consumer/ customer" mindset.

As schools begin retroactively altering their students' GPAs and otherwise lowering standards of academic rigor, all in the name of marketing and gaming the USN&WR rankings, professors who balk at such measures might find themselves in their administration's cross-hairs. A friend of mine who teaches in a liberal arts setting reports feeling a not so subtle pressure to keep students' grades high, keep the students happy, and not be too much of a stickler for detail, lest the tuition-paying customers/ students be too taxed.

When these pressures start hitting law schools, and I think they already have to some degree, professors who insist on policies that don't help the "marketing department" might be those most in need of the protections of tenure.

Posted by: NewLawProf | Aug 19, 2010 1:52:39 PM

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