Understanding Tenure and its Modern Applications

By: Courtney Davis

As a result of conservative politicians’ increasing desperation to regain social control due to the reactionary political shift away from President Trump to President Biden, conservative legislators have leveraged feigned concern about the integrity of the family and American ideals to push forward legislation restricting classroom content. Recent bills considered within various state legislative halls include imposing restrictions on discussion of race, sexual orientation and gender identity, history, and religion.[1] Although most bills have targeted grades K-12, higher education has not escaped the conservative attack of “liberal brainwashing” or indoctrination through education.[2] Florida’s House recently passed SB 7044, which implements a “comprehensive” review of tenured faculty job performance established by the Board of Governors.[3] Iowa’s Republican lawmakers revived discussion of legislation to ban tenure at Iowan public university at a 2021 Iowa Congressional session.[4] Republican Lieutenant Governor Dan Patrick similarly announced that one of his priorities for the incoming legislative session is to end tenure at all public universities in Texas.[5] Attacks on academic freedom are nothing new. Legislators attempted to erode academic freedom as part of Cold War efforts to “identify[] and expel[] communist sympathizers.”[6] For example, New York legislators attempted to “root out communists” in the early 1950s using various tactics.[7] Unfortunately, modern day legislators have refused to take heed of the lessons offered by past errors. Renewed scrutiny of tenure and academic freedom highlight the need to better understand how academic freedom and tenure function within a political context.

According to the American Association of University Professors, “academic freedom” for teachers is “freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.”[8] Academic freedom has been used to describe an educational institution’s right to autonomy from political control, an individual’s right to express their own viewpoints, and a student’s right to learn.[9] Ultimately, academic freedom is understood to further larger societal goals including the “advancement of truth” and promoting the common good.[10]

In the 1950s, the U.S. Supreme Court established a connection between academic freedom and the First Amendment, stating that academic freedom is “a special concern of the First Amendment.”[11] Viewing academic freedom through a Constitutional lens created more protections for educators when there was a state actor (i.e., publicly funded institution), but this did not extend to private educational institutions. Generally, constitutionally grounded free speech protections for public employees are governed by Garcetti v. Ceballos, a 2006 Supreme Court case that held that public employees who make statements pursuant to their official duties are not protected by the First Amendment from employer discipline.[12] However, the Court in Garcetti potentially left room for an exception to this holding specifically for academics, stating that “some expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by [the] Court’s customary employee-speech jurisprudence.”[13] The Court’s discussion in Garcetti demonstrates the tensions among academic freedom, free speech, and politics for state actors (i.e., faculty at publicly funded universities). Free speech protects individuals, but state actors acting within the course of their official duties are not acting within an individual context.[14] “Free speech makes no distinction about quality; academic freedom does.”[15] The dominant political culture informs when the law is used to limit both academic freedom and free speech. Subsequently, courts determining whether and how to apply Garcetti to public university faculty have arrived at different conclusions. Thus, the Constitution provides some protection of academic freedom to university faculty at publicly funded institutions depending on the jurisdiction.

Tenure provides an additional layer of protection for academics. Tenure is “an employment status that protects academic employees from dismissal absent serious misconduct, incompetence, or financial exigency.”[16] Tenured university faculty are provided institutional protection against firing as a tenured employee can only be discharged for cause with due process.[17] Thus, tenure is considered to provide faculty with job security and protect their academic freedom through the due process requirement.[18] Without tenure, academics fear a chilling effect on speech and an erosion of the legitimacy of academic institutions.[19]

While protection of academic freedom and tenure within the legal system originated from a time of political repression (i.e., the Red Scare), academic freedom and tenure today function to preserve institutional hierarchies that bolster and reproduce the dominant oppressive systems of American society: capitalism, patriarchy, and white supremacy.[20] Within law schools in particular, academic freedom and tenure ultimately work together to silence Black women. To obtain tenure, generally, a professor working towards tenure must demonstrate “academic excellence in teaching, research and service to the community” during a lengthy probationary period (typically seven years long).[21] The professor then receives an evaluation by peers and administrators who make the final determination on whether to grant tenure.[22]Black women face significant hurdles in the process to obtain tenure. In the words of legal scholar Joyce Hughes, “[j]ust as one often must pay a penalty merely for being a Black woman, so too one may incur sanctions or penalties as an untenured professor.”[23] With the specter of tenure in the back of one’s mind, the avenues for dealing with the hostility and discrimination common in workplaces, including academia, are narrowed. The process of achieving tenure hinders Black women’s ability to access tenure.

The legal profession, through the American Bar Association, originally excluded Black people, among other groups including immigrants, from serving as lawyers.[24] The legacy of that exclusion is clear today, with Black lawyers making up less than five percent of the field.[25] The culture of legal work environments similarly reflects that lack of diversity by presenting a hostile environment for Black women, who often experience microaggressions and microassaults from colleagues, university administration, and students.[26] However, without the security of tenure, Black women are often unable to effectively speak out or challenge this discrimination for fear of jeopardizing their chances at tenure. Inversely, the use of academic freedom to protect racist and anti-Black commentary from fellow professors demonstrates a clear lack of equitable access to the protections that academic freedom and tenure are supposed to provide.[27] Tenure also perpetuates the myth of meritocracy that substantiates the capitalist propaganda of the “American dream.” By promoting the idea that any professor can secure tenure by achieving the right mix of “objective” criteria for job performance without acknowledging the challenges unique to Black women, tenure functions to suppress Black women’s identity and autonomy within legal institutions and elicit additional labor without compensation.[28]Further, the contributions of Black women to legal academia are consistently undervalued in tenure considerations, where the legitimacy of their scholarship is questioned, expressions of their cultural identity are challenged, and their contributions to students and communities are ignored.[29]

Even though academic freedom and tenure currently work to exclude Black women and other minority groups from fully accessing academic freedom, the larger value of academic freedom, and tenure, in turn, to society remains clear. Thus, reform of how tenure is granted and how academic freedom is leveraged within the university and college sphere is necessary. For example, increasing transparency in the tenure and promotion process and changing the criteria for tenure could positively impact access to tenured positions.[30] Similarly, larger reforms of academic institutions are necessary to rid themselves of inadvertent reproduction of the oppressive hierarchies of American society. There may also be a role for unions in securing more equitable protections of faculty academic freedom through the collective bargaining process.

         Ultimately, understanding the function and value of tenure and academic freedom within legal academia requires fully contextualizing these concepts and practices. While academic freedom and tenure can be seen as reflecting the ideals of a utopian democratic republic, in reality, they exist to perpetuate white supremacy, patriarchy, and capitalist domination via the exclusion and suppression of Black women. Thus, more scrutiny should be given to the context surrounding the use of academic freedom and tenure. Ideally, implementing reforms that take that context into critical account will ensure equitable access to tenure and allow for a redefining of academic freedom that accounts for the perspective and labor of Black women and other marginalized groups. To be clear, this blog post is not advocating against academic freedom as a philosophy or for the abolition of tenure. An analysis of both the historical and modern conservative attacks waged on academic freedom and tenure demonstrate the value of academic freedom to democratic society. This blog post really provides additional context and nuance to understanding the role that academic freedom and tenure play in contemporary academia. In sum, as Nikole Hannah-Jones highlighted in her statement addressing the loss of her tenure due to conservative backlash, Black women in academia deserve “tenure and respect.”[31]

[1] Gustaf Kilander, US States Have Introduced 137 Bills Limiting what Schools Can Teach on Race, History, Sexual Orientation, and Gender, The Guardian (Feb. 5, 2022, 17:12 PM),  https://www.independent.co.uk/news/world/americas/us-politics/schools-teach-race-history-gender-b2008438.html.

[2] Sean M. Kammer, The “Intellectual Diversity” Crisis that Isn’t: Liberal Faculties, Conservative Victims, and the Cynical Effort to Undermine Higher Education for Political Gain, 39 Quinnipiac L. Rev. 149, 151-52, 155 (2021); see Freedom in the Classroom, American Ass’n of Univ. Professors, https://www.aaup.org/report/freedom-classroom (last visited Apr. 1, 2022).

[3] Divya Kumar, Florida Legislature Passes Bill Allowing More Scrutiny of Tenured Faculty, Tampa Bay Times (Mar. 10, 2022), https://www.tampabay.com/news/education/2022/03/10/florida-legislature-passes-bill-allowing-more-scrutiny-of-tenured-faculty/; Divya Kumar & Ana Ceballos, Late Bill Change Would Weaken Tenure at Florida Universities, Faculty Say, Tampa Bay Times (Mar. 7, 2022), https://www.tampabay.com/news/education/2022/03/07/late-bill-change-would-weaken-tenure-at-florida-universities-faculty-say/.

[4] Stephen Gruber-Miller, Ban Tenure at Public Universities? Iowa Republican Lawmakers are Working on It., Des Moines Reg. (Feb. 11, 2021, 4:12 PM), https://www.desmoinesregister.com/story/news/politics/2021/02/11/legislature-measures-ban-tenure-public-university-iowa-state-isu-uni/6719768002/.

[5] Andrew Schneider, Dan Patrick’s Plan to End Tenure at Texas Universities Could have Dire Consequences, Experts Warn, Houston Pub. Media(Mar. 28, 2022, 4:07 PM), https://www.houstonpublicmedia.org/articles/news/in-depth/2022/03/28/421924/patricks-plan-to-eliminate-tenure-at-texas-state-universities-could-have-dire-consequences-experts-warn/.

[6] Neal H. Hutchens et al., Faculty, the Courts, and the First Amendment, 120 Penn St. L. Rev. 1027, 1032 (2016).

[7] Freedom in the Classroomsupra note 2; Denise S. Smith & Michael A. Katz, Academic Freedom in an Age of Assessment and Accountability, 22 Midwest L.J. 1, 6 (2008).

[8] Kammer, supra note 2, at 153.

[9] Smith, supra note 7.

[10] Id. at 3.

[11] Id. at 6.

[12] Id. at 7.

[13] Id. at 8; Robert J. Tepper & Craig G. White, Speak no Evil: Academic Freedom and the Application of Garcetti v. Ceballos to Public University Faculty, 59 Cath. U. L. Rev. 125, 129 (2009).

[14] Kammer, supra note 2, at 197.

[15] Id. at 198.

[16] Tepper, supra note 13, at 128.

[17] Id.

[18] Mark L. Adams, The Quest for Tenure: Job Security and Academic Freedom, 56 Cath. U. L. Rev. 67, 74, 80 (2006).

[19] See Kumar & Ceballos, supra note 3.

[20] See Renee Nicole Allen, From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy, 68 UCLA L. Rev. 364, 376 (2021).

[21] George Justice, Academic Tenure: What it is and Why it Matters, The Conversation (June 18, 2021, 8:28 AM), https://theconversation.com/academic-tenure-what-it-is-and-why-it-matters-162325.

[22] Id.

[23] Pamela J. Smith, The Tyrannies of Silence of the Untenured Professors of Color, 33 U.C. Davis L. Rev. 1105, 1110 (2000).

[24] Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 Cal. L. Rev. 1449, 1476 (1997).

[25] Karen Sloan, New Lawyer Demographics Show Modest Growth in Minority Attorneys, Reuters (July 29, 2021, 6:12 PM), https://www.reuters.com/legal/legalindustry/new-lawyer-demographics-show-modest-growth-minority-attorneys-2021-07-29/.

[26] Allen, supra note 20, at 385-86.

[27] Id. at 370.

[28] Id. at 378-79.

[29] Id. at 378, 391-94.

[30] Id. at 402-03.

[31] Nikole Hannah-Jones Issues Statement on Decision to Decline Tenure Offer at University of North Carolina-Chapel Hill and to Accept Knight Chair Appointment at Howard University, NAACP Legal Def. and Educ. Fund (July 6, 2021), https://www.naacpldf.org/press-release/nikole-hannah-jones-issues-statement-on-decision-to-decline-tenure-offer-at-university-of-north-carolina-chapel-hill-and-to-accept-knight-chair-appointment-at-howard-university/.

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