- Origins of Tenure
- Evolution of Tenure in the United States
- Tenure and the U.S. Supreme Court
- Challenges and Controversies
Tenure was designed to prevent the dismissal of educators by arbitrary or capricious actions of educational officials. At the same time, it is important to acknowledge tenure does not guarantee lifetime employment. Rather, tenure provides procedural due process when faculty members with property interests in their jobs, either in the form of tenure or set amounts of time remaining on contracts, face the threat of dismissal from their jobs for cause. When faculty members are subject to dismissal for cause, the disputes often result in litigation, with a few high-profile cases garnering much media attention.
The concept of tenure has a long history representing efforts to protect educators from job insecurity resulting from reactions to their teaching, speaking at conferences, or published works. This entry reviews the origins of tenure, its evolution in the United States in colleges and universities through the work of the American Association of University Professors (AAUP), and rulings on tenure by the U.S. Supreme Court over the years. The entry also describes the function of tenure in higher education, where it plays a central role in protecting academic freedom.
Origins of Tenure
As noted, tenure grants faculty members protection from unfair dismissal. In perhaps the earliest example of what might be considered protection akin to tenure, in 1245, Pope Innocent IV granted exemptions to scholars in the University of Paris excusing them from having to appear at ecclesiastical courts some distance from Paris. The following year, a Court of Conservation was founded to protect university faculty when the same types of issues arose. Over time, as reflected in practices such as academic abstention, universities and academicians were granted autonomy from local, civil, and ecclesiastical officials. There were some limits to these protections when attacks were made on the prevalent dogmas, but the concept of autonomy provided insulation from excessive encroachment by officials outside of the realm of the academy.
In the 1890s, Germany sought protection for educators through Lernfreiheit, or the freedom of university students to choose courses, move from school to school, and be free of dogmatic restrictions. Lernfreiheit, which essentially lies at the heart of academic freedom, also stressed faculty rights to freedom of inquiry and freedom of teaching with the right to report on findings in an unhindered, unrestricted, and unfettered environment.
Through the founding of the AAUP in 1915, John Dewey and others sought to help academicians be free from interference with their employment by external persons or groups. This protection was important, because during the 19th and early 20th centuries, faculty members were often dismissed for offending individuals or groups. Faculty members were also fired for criticizing business and corporate ethics.
During periods of international conflicts involving the expansion of feared ideologies such as communism, books by faculty members were criticized for their rhetoric, in some cases even banned. Based on fears of communism, others induced conspiracy theories that threatened academic freedom. Consequently, loyalty oaths, which had emerged earlier, became more widespread in the 1950s and 1960s with the Supreme Court reaching mixed results on their constitutionality in a variety of cases. The AAUP was a strong supporter of the rights of faculty members to academic freedom, freedom of speech, and tenure during these periods. Still, political interference was frequent, often leaving faculty members with limited recourse against unreasonable interference with their professional responsibilities.
Evolution of Tenure in the United States
In 1940, the AAUP issued a Statement of the Principles on Academic Freedom and Tenure. The principles in this statement included assumptions that tenure is a means toward freedom in teaching and research as well as in extracurricular activities. The document added that tenure is important in recruiting and retaining qualified individuals to the teaching profession, especially in higher education. Further, the document maintained that freedom and economic security for faculty members were indispensable to the success of colleges and universities in meeting their professional obligations to students and society.
Thirty years later, in 1970, a committee of the AAUP and Association of American Colleges (AAC) clarified that the 1940 statement was not a static code. Rather, the AAUP and AAC explained that the original document provided the framework for guiding future changes in the social, political, and economic climate on campuses. The groups also observed that in Keyishian v. Board of Regents of the University of the State of New York (1967), the Supreme Court reiterated that the United States is committed to safeguarding academic freedom to all citizens, not just educators; this, the AAUP and AAC declared, is a freedom that is especially supported by the First Amendment.
The AAUP has since identified colleges and universities that it has censored for what it believes are infringements on academic freedom and tenure. In this regard, the AAUP encourages university officials to work to with faculty members to eliminate threats to academic freedom and tenure. In its function as a voluntary organization, the AAUP uses its censorship lists and on-campus membership in attempting to change institutional policies that threaten academic freedom and tenure.
Tenure and the U.S. Supreme Court
In Sweezy v. New Hampshire (1957), the Supreme Court highlighted the importance of tenure in academic freedom when it wrote:
The essentiality of freedom in the community of American universities is almost self-evident. . . . To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study, to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die. (p. 250)
The Supreme Court has reiterated this principle in succeeding cases through the years, acknowledging the important role that tenure occupies in the lives of American colleges and universities.
In Board of Regents v. Roth (1972), the Supreme Court held that liberty and property rights are created by contract or state law and constitutionally protected. In order to acquire that protection, faculty members in higher education are typically required to serve for set periods of time, often seven years, meeting specified requirements in scholarship, teaching, and service before earning tenure. During their probationary periods, faculty members who are on the so-called tenure track are not entitled to employment property rights beyond the terms of their contracts. To this end, in Perry v. Sindermann (1972), the Court was of the opinion that procedural due process safeguards are required only for faculty members who have a property or liberty interest in employment. While public and private institutions of higher learning may operate under different provisions with regard to tenure, in the uncommon situation of reductions in force on campuses, where individuals are dismissed through no fault on their part due to such reasons as financial exigency or the termination of programs, faculty members with tenure are typically dismissed last.
As citizens, faculty members in higher education have the freedom to express their beliefs and opinions and to engage in controversial debate and inquiry. However, because faculty members have obligations and responsibilities to be professional and ethical in their work, tenure does not protect them if they fail to meet these requirements. The AAUP principles of professional ethics and responsibility also caution faculty members to avoid persistent introduction of material that has no relation to the subjects they are teaching; this is an area of increasing controversy in the politicization of many campuses.
Challenges and Controversies
The 1915 AAUP Statement of Principles reminds faculty members that when they speak as private citizens, they have obligations to inform listeners that they are not speaking as representatives of their educational institutions. This is sometimes difficult in teaching the humanities and other social sciences, where encouraging students to engage in critical inquiry often entails examining assumptions underlying policy decisions. Peer review has been used in recent years to ensure that faculty members are productive and current in their academic fields.
Critics of tenure maintain that it may make it difficult to dismiss faculty members who are incompetent, nonproductive, underprepared, or not up-to-date in their fields. The enforcement of tenure is a function of individual colleges and universities. Major institutions maintain administrative policies to ensure that faculty tenure rights are secure and followed throughout the organizations, especially when individuals are subject to dismissal for cause.
Generally, administrators in higher education, many of whom are culled from academic ranks, are not granted tenure in their administrative roles. Tenure is arguably becoming less frequent in public education; for example, it may not be part of school policy in charter schools, which operate under different governance models than other public schools. Nevertheless, tenure is usually present in colleges and universities, in part as a recruiting tool and also to facilitate retention of productive academicians. Nontenured faculty members, who have contracts for set lengths of time, generally four to seven years, may have specified property rights to employment but generally cannot receive de facto tenure absent affirmative actions by educational officials.
Tenure is a work in progress in distance learning institutions, as the Internet involves new and emerging tools for teaching. Ethical codes for the use of the Internet are being developed and updated as technology advances.
In recent years, there has been an increase in the number of faculty members who serve on a parttime basis as adjunct or contingency employees without the benefits and protection of tenure. Efforts are currently under way to extend essential tenure protections to these part-time faculty members, even though such an approach is often resisted by full-time university faculty. This distinction is important in community colleges, where more than half of faculties are typically part-time. Moreover, this issue is coming to a head as major universities increasingly rely on contingency faculty. However, accrediting agencies often criticize institutions of higher learning for over-reliance on using part-time faculty members to meet understaffed course and program needs, because they view this practice as designed to undermine the place of tenure on campuses.
James J. Van Patten
See also Board of Regents of State Colleges v. Roth; Due Process Rights in Faculty and Staff Dismissal
Mawdsley, R. D. (1999). Collegiality as a factor in tenure decisions. Journal of Personnel Evaluation in Education, 13, 167–177.
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).
Perry v. Sindermann, 408 U.S. 593 (1972).
Sweezy v. New Hampshire, 354 U.S. 234 (1957).