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  • As the AAUP Turns...

    By Dean Dad November 10, 2009 9:42 pm

    Apparently the AAUP is launching a new campaign in recognition of the rocky judicial climate for its conception of academic freedom. I couldn't agree more. In fact, I agree so strongly that I wonder if it has thought through its position completely.

    As regular readers know, I've argued for some time that the tenure system is unsustainable and even unethical. I've proposed as an alternative a system of long-term renewable contracts with academic freedom stipulated in the contract language. (For the record, I envision an initial contract of three years -- consistent with current practice for most tenure-track lines -- followed by renewable five-year contracts.) That way, if academic freedom is attacked, a complainant wouldn't have to rely on an extra-constitutional and undefined legal doctrine; she could bring action as breach of contract. Academic freedom could also be stipulated in institutional policy. To the extent that employee handbooks and/or institutional bylaws are given the force of contract, the objection from 'expiration' is rendered moot. (The recent decision that non-renewal is tantamount to termination further buttresses this argument.) Contract law is well-established, so the claim wouldn't rely on the good graces of any particular justice. What might sound, at first, like a retreat would actually be a significant advance for academic freedom.

    Whether you buy my interpretation of tenure or not, it seems clear that outside of the elite institutions, tenure is going the way of the typewriter. If the only alternative to tenure is temp gigs, then academic freedom becomes de facto the exclusive province of the elite. But if tenure can be replaced with a more sustainable system featuring long-term contracts and academic freedom, then we can keep the best elements of it without chaining ourselves to a dying system. And the accountability built in to a renewable-contract system would go a long way towards defusing the cheap political shots to which higher ed is now routinely subject.

    What struck me in the AAUP announcement is that it implicitly acknowledges the core of my argument. By pushing for discrete policy language on academic freedom specifically, even the AAUP is implicitly admitting that it's simply not plausible anymore to argue that tenure is the sine qua non of academic freedom. And once you make that move, the strongest argument against a contract system collapses.

    To be clear, I'm not saying that the AAUP would agree with my interpretation of its initiative. It almost certainly wouldn't. But the logic of the new initiative leads in this direction, and I'd argue that that's a good thing. We could put academic freedom on much more solid legal ground -- if the current legal ground were solid, the current initiative would make no sense -- and dispense with no-win arguments with the public. I'd guess that the AAUP would respond that this new initiative is a 'second-best' position, but the fact that it needs one proves the point. The link between tenure and academic freedom is contingent at best. And we could put academic freedom on a much stronger legal foundation without trying to turn back the tide of history.

    Of course, there's a larger issue of the proper definition of academic freedom, but that's for another day. For now, I'm simply arguing that it's better protected by relying on a well-established body of law than by relying on enlightened justices.

    (Anticipating the flaming: "Aha! So you're anti-faculty!" No. I just find it implausible that the strongest protection for academic freedom is to be found in a withering system with tenuous legal underpinnings. "Aha! You just want to get everyone fired!" No -- if I wanted that, I'd argue for employment-at-will, such as Proprietary U had. Alternately, I'd embrace tenure with my words, while quietly adjuncting-out openings by attrition, just like, well, most of American higher ed. The goal here instead is sustainability.)

    For now, I congratulate the AAUP on belatedly, and perhaps accidentally, recognizing that contract law is a much stronger foundation for academic freedom than some extra-constitutional notion that it thinks inheres in tenure. I couldn't agree more.

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Comments on As the AAUP Turns...

  • Implicit admission?
  • Posted by John Turri , Philosophy at Huron University College on November 11, 2009 at 5:15am EST

  • "What struck me in the AAUP announcement is that it implicitly acknowledges the core of my argument. By pushing for discrete policy language on academic freedom specifically, even the AAUP is implicitly admitting that it's simply not plausible anymore to argue that tenure is the sine qua non of academic freedom."

    I think the reasoning here is flawed.

    Suppose AAUP maintains that tenure is a "sine qua non" of academic freedom. That means that it's necessary to preserve academic freedom. It doesn't follow that other instruments aren't also necessary, or that they wouldn't be helpful. (No one in their right mind would claim that tenure is the only necessary condition, so the view that tenure is "the sine qua non" is really beside the point.)

    The mere fact that they'd advise including such language doesn't imply what you say it does.

  • Exactly
  • Posted by sibyl on November 11, 2009 at 9:00am EST

  • You don't have to look at this policy to see that the AAUP doesn't link tenure and freedom; it's right there in the 1940 statement, which says that freedom extends to the untenured too. DD is right that we simply must find other ways to protect freedom, because tenure as it's been understood for the last 125 years is eroding rapidly.

  • Tenure isn't just for faculty...
  • Posted by vfichera on November 12, 2009 at 5:00am EST

  • Just because AAUP principles say that the untenured, too, should have academic freedom doesn't mean that enforcing academic freedom is a given for untenured faculty anywhere. In fact, the independence of the judiciary has also felt the need to rely upon tenure in the highest courts of the land.

    And if, as is the case in most state institutions, civil service employment grants tenure for all the staff, well, why shouldn't the faculty have tenure, too? It's been said that when professionals got tenure on par with the faculty in SUNY as part of the same "community of interest," reportedly a few were upset that it took them seven years -- other civil service employees (campus secretaries, janitors, et al.) got it in six months!

    Actually, brilliant faculty organizers saw that the hand-writing was on the wall for favoring contracts, state law, and unionism, decades ago, even as the cases discussed in the AAUP report were wending their way through the Federal court system to the Supreme Court. In SUNY, for example, the academic freedom clause is not just in the collective bargaining agreement; it's in the SUNY Policies of the Board of Trustees which are incorporated into state education law.

    While AAUP and many faculty were relying almost uniquely on the courts to enforce academic freedom as a special case of First Amendment rights, forcing complaints into the Federal courts, the most expensive and slowest route to "justice" (a decade is not unheard of before all appeals have been exhausted), the sophists among the nation's faculty were busily crafting faculty handbooks, collective bargaining agreements, influencing the controlling language in contract letters, as well as lobbying for formal trustees' policies and statutory tenure in the states so that contract law, state and county courts, union arbitration, etc. would give aggrieved faculty access to speedier and less expensive resolution.

    BTW Not to belabor the SUNY example, but there is still no statutory tenure in SUNY; all "continuing appointments" are technically subject to each round of contract negotiations. The governor and SUNY also introduced "contracting out" into the bargaining agreement in the nineties, uncontested by the SUNY union at that and each subsequent round of negotiations. And the SUNY union hasn't arbitrated a single academic freedom case, even one or two it had originally committed to.

    Such practices have been uncontested by the AAUP as well: I personally requested AAUP's assistance in resisting "contracting out" and was told to go away -- and assent. (Yes, I have kept that infamous letter of response from the then AAUP General Secretary, which must have had Dewey and Lovejoy turning in their graves, I am sure.) The savvy of their founders is no longer the norm in either SUNY's UUP or the AAUP.

    In any event, AAUP is not now, it seems to me, throwing the baby out with the bathwater, but rather recognizing that a truly wise advocate (in all senses of the word) knows how to strategize the win. If the Federal court system has made First Amendment definitions of academic freedom subservient to the will of the employer, well, it isn't the only game in town and gown -- not by a longshot. But you have to play to win. Relinquishing tenure wouldn't level the playing field, it would simply solidify forever the waxing "divine right" of the "kings" of higher education administrations.

  • Posted by Jonathan Dresner on November 12, 2009 at 5:00am EST

  • There's another option: we can make it a constitutional amendment, like the Japanese Constitution, Article 23 (which we wrote).

  • Posted by Adjunct George on November 12, 2009 at 5:00am EST

  • I agree with the dean. It would also help destroy the caste system currently in vogue in the academic world. Who knows - the faculty might actually begin to treat the students as custormers with some kindness.

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