higher education labor rights faculty tenure

Tenure refers to a legally secure position, an “indefinite appointment” at an institute of higher learning (AAUP, 2019, p. 1). Of course, extenuating circumstances may enable the educational institution to sever the contract and terminate the tenured faculty. One of those extenuating circumstances would be financial exigency: an unavoidable and unfortunate situation in which the institution experiences severe budget shortfalls and must completely reconsider reallocating resources in order to remain viable at all. A similar extenuating circumstance that may legally permit the termination of a tenured faculty member would be the restructuring of the institution to the degree that whole departments were eliminated, thus eliminating all associated faculty within that department. Other extenuating circumstances that would legally permit the institution to terminate tenured faculty would be serious legal or ethical violations. Otherwise, though, tenured faculty enjoy greater job security and benefits versus their non-tenured colleagues.
According to the American Association of University Professors (AAUP, 2019), tenure has been embedded in higher educational policy since 1940. Tenure has remained the cornerstone of higher education, promoting broader values related to academic freedom and freedom of speech (Eastman & Boyles, 2015). As Curnalia & Mermer (2018) point out, “tenure makes it safe for faculty to try new pedagogies and explore new lines of research; formal academic freedom protects faculty who advocate on behalf of their students, their universities, and their communities,” (p. 129). Although critics of the tenure system point out that the vast majority of university and college faculty do not enjoy the protections of tenure including its attendant academic freedoms and job security, tenure remains a critical component in protecting the integrity of higher education.
However, the means by which to protect academic freedom and ensure labor rights could be currently under threat. The vast majority—70%--of all faculty appointments are currently not on the tenure track at all (Curnalia & Mermer, 2018). University administrators face mounting pressure to keep their institutions financially viable, which further undermines their ability to expand opportunities for tenure. Conflicts of interest have also plagued university administrators attempting to balance the need for remaining financially solvent with their commitments to ideals like academic freedom.
Preserving Institutional Rights
Lofty ideals like academic freedom need not always conflict with institutional rights to manage financial exigencies, but often do. Administrators will occasionally face uncomfortable or compromising situations involving decisions such as whether or how to terminate tenured faculty for financial reasons. In situations like these, tenured faculty have some legal rights such as due process. Part-time and untenured faculty do not enjoy the same legal rights, and may not even be entitled to collective bargaining. An increasing number of faculty members are hired on a contract or contingency basis.
Organizational culture has become a significant issue related to faculty rights. Faculty, particularly tenured faculty, have a vested interest in shared governance models of organizational structure (Curnalia & Mermer, 2018). Shared governance implies that the power vested in tenured faculty is not merely symbolic, just about labor rights or even just about academic freedom. Rather, shared governance empowers tenured faculty to influence organizational decisions, to determine the direction of research or academic programs, or to influence the university’s stance on major political, economic, or ethical decisions. As tempting as it is for some institutions to adopt a shared or collaborative governance model, many have instead opted for the opposite. Many institutions have shifted towards hierarchical models of corporate governance, creating top-heavy organizational structures that preclude tenured faculty from having a voice in institutional decisions or social responsibility (Eastman & Boyles, 2015). The migration away from shared governance models has in many ways undermined the faculty rights of tenured professors, but even more so for non-tenured personnel including contingent and part-time faculty (Alleman & Haviland, 2017).
Termination of Tenured Faculty
As firm as tenured positions are, they are far from invincible. University professors are human and as such, they can commit crimes, engage in unethical behavior or fail to perform their professional duties according to the provisions of their contract. Proving that the professor’s behavior was illegal or unethical can be challenging, and may involve the active participation of students and other faculty members in the process. While the process of firing a tenured faculty member is typically long and tedious due to the provisions of the contract, it is certainly possible for the administration to make such decisions.
Financial Exigencies
Putting aside the individual or personal reasons for terminating a tenure contract, such as breach in the code of ethics, administrators can declare financial exigency. A financial exigency is basically a financial emergency. It is a situation in which the university faces certain demise unless it totally restructures its budget and reallocates resources. Universities that suddenly experience budget cuts due to dips in government spending, or institutions that lose a corporate donor may experience financial exigency. Likewise, declining enrolment might also precipitate a fiscal crisis on campus. In these situations, the administration faces difficult choices, one of which may be downsizing. Even tenured faculty members are not immune from the effects of financial exigency. Tenured positions could be at risk if the administration can prove that financial exigency was real and directly warranted the culling of faculty or whole academic departments.
Due Process in Financial Exigencies
However, a university cannot simply declare financial exigency in order to get rid of tenured faculty. The financial exigency needs to be proven and real, and efforts must be made to protect the interests of both tenured and non-tenured personnel. Tenured faculty have the right to due process and have access to formal procedures to protest administrative decisions. Due process balances institutional rights with the labor rights enjoyed by the tenured faculty. Administrators can explore multiple methods of mitigating the financial exigency including raising rates of tuition, which present additional ethical dilemmas (Mitchell, Palacios & Leachman, 2015). Within the provisions of the labor union, the specific methods of exercising the right to due process may vary but would entail a complete review of the institutional policy, contractual obligations, and also state law.
Rights of Part-Time Faculty
Part-time and non-tenured faculty have more unstable positions and fewer legal rights in higher education versus their tenured counterparts. In fact, one of the main arguments against the very grounds of tenure has been the segmentation of faculty into two groups: privileged and under-privileged (Alleman & Haviland, 2016). Part-time faculty and especially contract faculty have almost no rights compared with tenured faculty and yet could ironically become more valuable to the organization in times of financial crisis. Administrators may recognize that part-time faculty cost less overall to manage, and would therefore become more inclined to use financial exigency as an excuse to cull whole academic departments while protecting the contingent positions. In most cases, though, part-time and untenured faculty do not enjoy the same set of legal rights as tenured faculty. Part-time faculty rights would depend on individual circumstances, as well as on whether or not the faculty enjoyed the legal auspices of a labor union. Theoretically, unionized part-time and untenured faculty could still enjoy some of the rights bestowed on all other personnel including the right to due process and to collective bargaining.
The Collective Bargaining Process
Integral to the exercise of labor rights, collective bargaining is a process by which administrators and faculty negotiate terms with the ideal outcome of a win-win situation. As with shared models of governance in academic institutions, collective bargaining implies the equal legal status of all parties. According to the AAUP (2019), collective bargaining remains far more common and accessible in state funded educational institutions due in part to landmark legislation that seriously undermined faculty rights in the United States: National Labor Relations Board (NLRB) v. Yeshiva University. This landmark case resulted in a dramatic decline in the power conferred to faculty, which were subsequently treated as subordinate members of the organization vis-a-vis administrators (AAUP, 2019). The impact has been to antagonize faculty and administrators, creating an even greater need for collective bargaining to minimize the chances of abusing the right to declare financial exigency in order to silence staff or terminate a tenure contract.
Organizations like the AAUP and also labor unions continue to represent and advocate on behalf of all faculty, including part-time and contingent faculty. Institutions of higher learning are fundamental features of any democracy. The advancement of research does depend on strong and fiscally wise management, but decisions made by administrators should never place profitability over the values inherent in higher education. Faced with financial exigency, universities and colleges have a wide range of options. Solutions can be reached more efficiently and effectively in a climate in which faculty are empowered and operate in a climate of collaboration.
References
Alleman, N.F. & Haviland, D. (2017). “I expect to be engaged as an equal”: collegiality expectations of full-time, non-tenure-track faculty members. High Educ (2017) 74: 527. https://doi.org/10.1007/s10734-016-0062-4
American Association of University Professors (AAUP 2019). Tenure. Retrieved from: https://www.aaup.org/issues/tenure
Curnalia, R. M. L., & Mermer, D. (2018). Renewing our commitment to tenure, academic freedom, and shared governance to navigate challenges in higher education. Review of Communication, 18(2), 129–139.doi:10.1080/15358593.2018.1438645
Eastman, N. J., & Boyles, D. (2015). In defense of academic freedom and faculty governance: John Dewey, the 100th anniversary of the AAUP, and 
the Threat of Corporatization
Mitchell, M., Palacios, V. & Leachman, M. (2015). States are still funding higher education below pre-recession levels. Journal of Collective Bargaining in the Academy, April 2015, Article 71. Retrieved from: https://thekeep.eiu.edu/cgi/viewcontent.cgi?article=1524&context=jcba