What is it about tenure that gets some people so upset? That it grants certain employees a security not available to others? That it seems to mollycoddle ivory-tower intellectuals? That it gets in the way of pruning academic “deadwood,” however defined? That it makes it difficult for administrators to respond quickly to real or perceived changes in student demand, socio-economic need, or institutional “branding”? That it may constitute a PR problem for institutions dependent on public goodwill? All of the above?
Chances are that many of the critics are not completely sure what tenure is. But they do seem to be sure that they don’t like it and want it replaced. The substitute most frequently mentioned is a system of renewable contracts of five to ten years in length, with safeguards for academic freedom. This, it is argued, would permit a closer evaluation of performance and greater institutional flexibility, without endangering the freedom of teaching, research, and expression—central to the academic enterprise—that tenure presumably exists to protect.
The idea that tenure was invented so that academic freedom might be secure seems almost an article of faith in the academy. Yet it is mistaken. Tenure does protect
academic freedom, but that was not its primary role in much of Canadian university history. Known as a continuing appointment or appointment without term, tenure conferred a high degree of security on people who would, if dismissed, have found it difficult if not impossible to obtain comparable alternate employment.
The charters or statutes of most of the older universities in British North America did not refer to the terms of office enjoyed by their professors. This created the presumption, especially in those institutions in which the Scottish influence was strong, that tenured professors held their appointments during good behaviour until a governing board pensioned them off. Some died first. (Pension plans did not exist until they were gradually introduced during the first six decades of the twentieth century.) Professors could, however, be dismissed for cause, which then meant incompetence, neglect of duty, or moral turpitude.
Judicial interpretation from 1860 to 1923, however, did not support the idea of tenure during good behaviour. Wherever tested, the presumption yielded to the principle that professors, although enjoying appointments without term, nevertheless held their offices during pleasure, i.e., at the discretion of the governing boards of their institutions. Presidents and boards only rarely used their power to dismiss, however, so that professors could be excused for believing they held tenure during good behaviour. In Smith v. Wesley College in 1923, Mr. Justice A.K. Dysart stated in an obiter dictum that professors did not simply serve at will or
during pleasure. They were specially trained for work of a special kind, Dysart wrote: “Their opportunities for suitable employment are rare, and if lost are not easily substituted by other congenial employment. Their special training unfits them for general service. In their chosen field, the material rewards are relatively small. In order that this noble profession may still attract recruits, it is wisely acknowledged both in theory and practice that the employment of professors by colleges should be characterized by stability approaching to permanence.”
In this vein, the University of Alberta law professor G.L. Fridman wrote 50 years later: “University employment is rather like membership in some profession because dismissal is like loss of professional status: the dismissed party is deprived of the means of obtaining a livelihood by the exercise of that skill and expertise for which he [sic] has prepared himself by years of training.” Dismissal, in his view, should be subject to the same standards of due process and demonstration of cause used in debarring lawyers or revoking licences to practice medicine.
By the time Fridman wrote, moreover, tenure during good behaviour was again becoming the rule in Canadian universities. This owed something to a high-profile incident in 1958 in which academic freedom seemed to be central. The dismissal of the United College historian Harry S. Crowe not only became the occasion of the first committee of inquiry launched by the Canadian Association of University Teachers (CAUT), it heightened awareness of the difference between tenure as custom and tenure in law. Normally behaving as though professors enjoyed tenure during good behaviour, on rare occasions governing boards acted on the legally accurate understanding that professors served during pleasure. The Crowe case was one example; the controversial dismissal of the University of Alberta biochemist George Hunter in 1949 was another.
The Crowe case hastened the CAUT’s adoption of a statement on academic freedom and tenure. The document approved in 1960 described tenure as a means to the professor’s “freedom as a teacher, as an investigator, and as a private citizen,” and to the provision of “sufficient economic security to make the profession attractive to men and women of ability.” In case of dismissal, cause must be demonstrated and that professors must be allowed to defend themselves. Very important to such moves to strengthen tenure was the academic labour market. Faced by the mid-1960s with an unprecedented shortage of qualified personnel, administrations, academic senates, and governing boards were taking the steps necessary to formalize tenure during good behaviour, with dismissal permissible only for cause (later financial exigency was added to this). This was a response to requests by faculty associations; it also helped institutions attract scholars who were teaching elsewhere. At the same time, elaborate procedures for granting tenure were adopted. Decisions once made by department heads and deans came to be made by committees.
Many departments in the humanities and social sciences have seen the number of their tenuretrack positions decline, to the benefit of other parts of the university
The objective was to ensure that only those who deserved tenure would get it. Critics argued that the process was not tough enough, and that some professors slacked off after getting tenure. The historians David Bercuson, Robert Bothwell, and Jack Granatstein charged in two polemics, The Great Brain Robbery (1984) and The Petrified Campus (1997), that sloth triumphed too often. Asserting that significant scholarly activity was synonymous with excellence, and that those who did research at the frontiers of knowledge were, by definition, excellent teachers, they complained that many tenured professors did not make the grade.
It is true that some of those hired during the period of maximum expansion had no long-term commitment to research. But if one result was the inadequate scholarly output deplored by Bercuson, Bothwell, and Granatstein, this corrected itself over time. Those hired in the 1970s were generally more engaged in research than some of their elders. More recently the competition for tenure-track positions has become so fierce that many applicants already have publication records substantial enough to satisfy almost any tenure committee. Meanwhile, the appointees of the 1960s have retired.
The retirements of the last decade have resolved another alleged drawback of tenure, its role in hindering the reallocation of resources within the university. Many departments in the humanities and social sciences have seen the number of their tenure-track positions decline, to the benefit of other parts of the university.
This, however, has brought new challenges, among them a growing reliance on what used to be called part-timers and are now called contract faculty, whose services are widely used especially in the metropolitan areas. Where they are unionized, their academic freedom is usually protected by contract. But they, like full-time faculty appointed on eightmonth or one-year contracts, lack a key benefit of tenure: employment security. A seniority system is of some help to them, but in those universities where one is in effect, academic administrators tend to dislike it because seniority may trump academic qualifications. Contract faculty see the matter differently: a key demand during the recent CUPE 3903 strike at York University was for five-year contracts to be awarded to long-service contract faculty.
All this raises at least three questions. Does the ready availability of contract faculty not show that the promise of security is no longer necessary to attract potential recruits to the academic profession? Why should some faculty enjoy security of tenure and not others? Why not give all faculty renewable term contracts of, say, five to 10 years?
The answer to the first question is surely “no”. Graduate students hoping for an academic career are a bit like people buying lottery tickets. Objectively PhD students may know their chances of getting a tenure-track position are poor; subjectively they see themselves as future holders of such a position. This makes psychological sense: who wants to invest years of time and forego years of income in order to become a poorly-paid itinerant teacher?
This is one reason for retaining tenure even though it is not available to all faculty. If tenure were abolished in a province, its universities soon would soon have to offer higher salaries not only to retain “stars” who could go where tenure is still available, but also to ensure a continuing supply of able recruits. Increased insecurity would come with a sizable price tag.
But would not a system of term contracts allow for more effective monitoring of performance while mollifying critics to whom tenure serves as a red flag?
Superficially attractive, term contracts offer no real solution to those who regard tenure as a problem. Several contributors to a collection of essays and documents with the title The Case for Tenure (1996), edited by an American law professor, Matthew Finkin, argue that a system of renewable contracts has serious flaws from an organizational point of view while putting academic freedom at risk. Citing a study by Richard P. Chait and Andrew T. Ford (Beyond Traditional Tenure, 1982), the economists Michael S. McPherson and Gordon C. Winston write: “If the decision about contract renewal were more than nominal, it would prove very costly to universities committed to it. The resources required to evaluate everybody seriously every few years would be simply enormous. If such evaluations did not result in many dismissals, they would be largely wasted. If they did, the university would bear the cost of greater turnover.” (Anyone who has served on a hiring committee recently knows how costly in time and money the recruitment process is.)
“But in fact,” McPherson and Winston continue, “the more likely outcome is that contract renewals will become routine, and the system will resemble instant tenure.” They identify two main reasons. After appointment there is no “moment of truth” such as is now provided by the tenure-granting process. Secondly, since the judges are also the judged, there is pressure not to judge one’s colleagues too harshly. Chait and Ford examined three institutions that used term contracts and found that turnover was low. They concluded that “contracts are neither a curse… nor a cure-all. As a practical matter, the traditions of tenure and the resistance to term contracts are too strong to be overwhelmed by an alternative with uncertain advantages, clear drawbacks, and an illegitimate aura.”
The drawbacks became evident in 1994, when the president and board of trustees of Bennington College, Vermont, declared financial exigency and dismissed 27 faculty members, including almost all critics of the administration. Bennington faculty were deemed to hold “presumptive tenure” after two three-year contracts, with subsequent renewals (largely routine) taking place every five years. “Presumptive tenure” was ended for new faculty at the time of the dismissals; the dismissed faculty were told that it was necessary to end their contracts early. The American Association of University Professors censured Bennington, and in 2000 the college settled a wrongful-dismissal suit, paying close to $2 million to 17 of the fired professors. However, Bennington remains on the AAUP blacklist to this day. It is worth noting that several of the dismissed faculty members were unable to find jobs in other institutions of higher learning.
The Bennington affair is a reminder that a contract has a term and can be terminated early at a price. But it is pointless to waste more ink on a proposal that is highly unlikely to be adopted. Let us turn instead to tenure review, urged by some as a means of saving tenure while ensuring that those who have it continue to deserve it. This will not satisfy the hard-core critics of tenure, however, and it has some of the same drawbacks as renewable contracts. If tenure review is thorough, it will be time-consuming; if it is perfunctory, why bother? It should be added that in 1990 the Supreme Court of Canada, in the case of McKinney v. University of Guelph,used an obiter dictum to identify tenure review as a threat to academic freedom.
Ten years ago I wrote in the pages of the Journal of Canadian Studies (Autumn 1999) that “it may be necessary to monitor tenure more carefully than in the past in order to demonstrate to observers that those who enjoy its privileges continue to deserve them.” Since then, professorial “slackness” has largely ceased to be a matter of concern. Now the key issue, except for those who dislike tenure on principle, is the growing proportion of faculty who lack security. The appropriate response to this, in my view, is not to make all faculty insecure but to increase the proportion of faculty who have tenure.
Tenure is not without drawbacks. But these are the price that has to be paid to protect the innovative, the unconventional, and the unpopular, those whose fields of academic specialization have fallen into disfavour and, most of all, those who do work, sometimes very important work, that takes a long time to complete and leads to no commercially useful results. Imperfect as it is, unfair as it may to some seem to be, tenure in its present form serves the long-term interests of universities and society better than any alternative that has been proposed. AM
Michiel Horn is Professor Emeritus of History and University Historian at York University. He is the author of “Academic Freedom in Canada: A History” (1999).