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The Texas Senate passed SB 18, a bill to end tenure at public universities. The University System of Georgia seems determined to avoid a full restoration of tenure’s protections. And, everywhere, Republican governments—not to mention faculty members and faculty hopefuls—are paying attention to the escalating campaign against tenure.
Now is the time for supporters of tenure to fight all fights—even seemingly minor ones regarding terminology. As someone who teaches employment law, I’m often dismayed by the language thrown around by tenure’s critics.
Consider, for example, the phrases “job for life” and “permanent position” that critics of tenure love to use. This language has driven me up the wall and into an entirely new area of research. It’s omnipresent, operates in a quasi-legal register and carries a powerful punch, even when it is wrong.
Even supporters or neutral commentators sometimes use this kind of language.
I suspect that supporters simply mean to convey that tenured employment departs from usual employment practice in the United States—which, to be clear, it does. Most employees can quit or be fired for good reason, bad reason or no reason at all (anything except an illegal reason). You can be fired for supporting a football team your boss doesn’t like, and you can quit because it’s a Wednesday. (Who hasn’t wanted to do that?) This is known as the “at will” model of employment.
Tenure departs from this default rule because it requires employers to articulate reasonable grounds for firing an employee. Because grounds that are reasonable can rarely be identified instantaneously and without some due process, tenure also often effectively imposes a “notice” requirement that allows employees a chance to respond.
But phrases like “job for life” and “permanent position” are big, impactful declarations. They don’t just suggest that tenure is different from standard practice: they scream that tenure is categorically unique. That, legally speaking, is simply untrue.
To begin with, the requirements of just cause and notice are hardly unique to tenure. In fact, there is an entire kind of employment relationship—aptly, if unimaginatively, called just cause employment—that is based on these same principles. And, while just cause contracts are far less common than at will contracts, just cause is hardly unique to university faculty. Fast food workers in New York City, federal government employees and even many physicians are just some of the kinds of workers who are often or always covered by just cause contracts.
Tenure, in other words, is simply a variety of the just cause contract regularly used outside academia. It is different in degree, not in kind. Academics, as people who are trained to think critically and carefully for a living, ought to realize that this distinction matters. And we ought to remind others that it matters, too.
When, instead, we tolerate descriptors like “job for life” and “permanent position”—let alone endorse them, even humorously or sarcastically—we cede argumentative ground. We implicitly signal that tenure may be as peculiar as its critics imply. This is not a signal we should want to send, particularly at a moment when critics are itching to show the world that academics are no better than anyone else.
Shrugging off this kind of language also signals that political rhetoric is not worth our time, even if political actions are to be taken seriously. But as escalating legislative campaigns against tenure suggest, this is no longer a risk we can afford to take. Language matters. The more Americans hear that professors get “jobs for life” without also hearing counterarguments against that terminology, the worse it is for tenure.
Maybe, you might worry, the reason we don’t often counter the underlying message of these phrases is because we can’t. Maybe tenure really is unique—just not because of those cause or notice requirements.
Supporters and critics alike sometimes point to the primacy of peer review as something that makes tenure unusual. And yes, faculty are heavily involved in hiring their future colleagues. Under ideal circumstances, they are even heavily involved in disciplining and terminating their current colleagues.
To the politicians seeking to destroy tenure, all this peer review looks suspicious. No wonder tenured faculty have “jobs for life” if they’re only held to account by one another! In the eyes of skeptics, those well-worn phrases start to take on another shade of meaning because they hint at the idea that academia is a cartel.
Once again, though, faculty tenure turns out to be wholly unextraordinary. Peer review may sound strange to a politician at the mercy of electoral review, or to the myriad workers subject to review by mysterious HR departments. But the idea of being judged largely (even wholly) by one’s peers is typical of the professions.
Lawyers are mostly disciplined by lawyers, doctors mostly by doctors. Peer review in the employment relationship reflects the fact that professions, by their very nature, claim authority over their members’ ability to continue their work.
Where does all this leave us with respect to phrases like “job for life” and “permanent position”? We now know that they overstate the uniqueness of the protections enjoyed by tenured faculty. And we also know that they overstate the uniqueness of how and by whom those protections are enforced.
Maybe, as a last option, tenured employment is often called a “job for life” because, as a factual matter, very few tenured faculty members are terminated.
This is simultaneously the strongest and weakest explanation of why this language gets used. It resists rebuttal. When it comes to tenured terminations, tenure’s supporters face a double bind. It seems like we must argue that tenure doesn’t prevent many faculty terminations (in which case, why value it?). Failing that, we must concede that tenure successfully prevents terminations (but we can’t articulate and justify its prevention rate as being optimal).
Let me suggest a third avenue open to supporters of tenure when they are faced with dangerous, overblown “job for life” language: tenure appears to be functioning largely as it should—as a form of just cause employment where cause for termination is difficult but not impossible to find.
Why do I think this? A few reasons …
First, it is important to remember that neither critics nor supporters of tenure have the numbers on tenured faculty terminations. No one collects these data—not the Department of Education, not state governments and not advocacy organizations like the American Association of University Professors or the Foundation for Individual Rights and Expression. To be clear, all these actors collect some data (and I have relied on their materials many times, with gratitude). But comprehensive data on tenured terminations do not exist.
This matters because critics and supporters alike are operating on an assumption: the number of tenured faculty who are terminated is significantly, undesirably lower than the number of other just cause employees who are terminated. We simply don’t know that—but, importantly, neither do they.
Second, even in the world of private industry that tenure-critical politicians love to praise, high employee turnover is generally viewed as a negative. Sure, there are specific industries to which that norm doesn’t apply: at least until the recent bloodbath began, Silicon Valley figured as the prime example of “good turnover,” while Amazon has become notorious for encouraging attrition. But more often than not, regularly losing or having to terminate employees is considered a sign that something is wrong. Churn is not usually something to aim for.
Third, some of the initial data collection I’ve engaged in over the past three years suggests that although tenured terminations are indeed rare, when they happen, they happen for “good” reasons.
Let’s back up a minute: What do I mean by “good terminations”?
By good terminations, I mean terminations of tenured faculty that occur for reasons most of us can agree are justifiable. Academic misconduct (plagiarizing, falsifying data), sexual misconduct (ranging from inappropriate relationships to assault), many types of unprofessional conduct (for instance, nonsexual workplace harassment)—these are just a few behaviors that, by my lights, and I think many others’, would constitute just cause for termination.
As it happens, these three explanations account for around 90 percent of tenured terminations in my data sample, which covers the period 2000 to 2021. That alone should be welcome news to supporters and critics of tenure.
How about the fact that most tenured terminations (around 70 percent) occur at public universities? Despite the additional legal protections often accorded to public employees, public universities do not seem hamstrung when they want to terminate their tenured faculty. That should be welcome news to critics of tenure, if not necessarily to supporters.
Now, do the tenured terminations data give us a definitive understanding of what’s going on? Certainly not.
Because there is no mandated reporting—and because I am just one person (with many talented research assistants)—and because faculty terminations are, for several reasons, unlikely to leave an internet footprint, the data I’ve collected are decidedly incomplete. There are, no doubt, many terminations of tenured faculty that are missing from my data set. (Please, help me fix this: send me information!)
Second, my data do not provide for denominators, which are crucial for placing numbers into context. To interpret the data point about how many tenured faculty members were terminated at public universities, we would want to know how many tenured faculty public universities wanted to fire but didn’t. We’d need, in short, a counterfactual: “If tenure didn’t exist, how many similarly situated faculty would have been fired?”
Finally, even if we had data sets that were both complete and contextualized (something I have dreamed of many times these past few years!) we would still be missing an important piece of the puzzle: comparators. Remember that critics of tenure are working off the assumption that what happens in academia is significantly worse than what happens elsewhere. That assumes knowledge about academia, to be sure, but it also assumes all the same information about “elsewhere.”
Absent these kinds of information, we should recognize language like “jobs for life” and “permanent position” for what it is: powerful, misguided and misleading rhetoric. And we should work to counter this rhetoric at every opportunity.