Constitutional Daily
May 2019


The Tenure Paradox


The American Bar Association has put tenure on the chopping block and the axe is falling fast. While members of the Council of the Section of the Legal Education and Admissions to the Bar generally agreed about the usefulness of tenure, they appear to be ready to accept the position that the decision to offer tenure should be left up to the school and that decision should be decoupled from accreditation. The only group supporting the tenure mandate are the people directly protected by it, the professoriate, while practitioners, deans, and judges were willing to put the decision in the schools’ hands.

Council member and accountant Edward Tucker argued “No one outside of academia understands why tenure exists,” and that it offers job protections unheard of in other professions. No surprise that University of Chicago’s Philosophy Professor of Law Brian Leiter had some harsh words┬áto say to Mr. Tucker:

Tenured employment is the opposite of at-will employment: it means that, usually after a probationary period, an individual can only be terminated “for cause.” Universities have been excessively lax about terminating faculty “for cause,” which contributes to the current atmosphere of suspicion of tenure. Tenured employment makes for more humane working and living conditions for employees, and protects them from arbitrary treatment. In the academic context, it also protects freedom of research, teaching, and inquiry. Those are the reasons for tenure. Must every institution offering legal education have tenure? Not obviously, though all the serious ones will. But regardless,┬ámembers of the ABA council ought to educate themselves about tenure.

I suspect Leiter has given Tucker a bit too literal of a reading. What he likely meant is that academia has failed to provide a good argument for why it needed heightened employment protections. Leiter has pointed out that other industries have tenure, such as most other teachers, and unionization tends to provide a similar level of protection. It is curious that Leiter would choose to defend tenure of legal academia by comparing it to the protections afforded to janitors and low level government employees. A fast food worker does not need freedom of research, teaching, and inquiry; indeed he will probably stomach his job better the less he inquires. Job protections for these employees is not to protect them from arbitrary treatment, it is to protect them from market competition. Unions band employees together to increase their bargaining position through labor monopolization, and then use that stronger position to negotiate better terms of employment, often at the expense non-union workers, and one of those enhanced terms is that it will be hard to fire a unionized employee. Legal academia does not have the same dynamics, and so Mr. Tucker’s question deserves a bit more thought.

In an efficient firm tenure or any other sort of job protection would be unnecessary: Tenure provides that an employee may only be terminated for cause, but an efficient firm would only ever choose to terminate for cause, so the protection is redundant. We are left with two explanations for why tenure would exist. The first is simple, that firms are not efficient, and that those with the power to make termination decisions may sometimes make arbitrary or personal choices.

The second explanation is that tenure does more than provide that termination must only be for cause, and in effect gives super-cause protections. Tenure tends to come with substantial process protections, and in any given year, only about 1 in 7000 tenured professors are terminated for cause. The process of getting tenure should weed out many substandard professors, but even so, it’s likely that a far greater number of professors could be fired for cause and would be if tenure did not protect them.

Whichever explanation is at work (and it is likely both), those supporting tenure are faced with a paradox. They must either state that they want to be protected from punishment for ordinary poor performance, or that they believe their deans and other administrators are petty and will fire them for personal reasons or professional disagreements. Professors are not going to take such positions though, meaning Tucker is quite right, no one understands why good professors should need protection from competent deans who value academic freedom.

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