Tenure, Academic Freedom, and Faculty Rights in Higher Education

Introduction to Tenure in Higher Education

Tenure refers to a legally secure position — an "indefinite appointment" at an institution of higher learning (AAUP, 2019, p. 1). Extenuating circumstances may, of course, enable an educational institution to sever the contract and terminate a tenured faculty member. One such circumstance is financial exigency: an unavoidable situation in which the institution experiences severe budget shortfalls and must completely reconsider the reallocation of resources in order to remain viable. A similar extenuating circumstance that may legally permit the termination of a tenured faculty member is institutional restructuring so extensive that whole departments are eliminated, along with all faculty associated with them. Serious legal or ethical violations may also legally permit termination. Otherwise, tenured faculty enjoy significantly greater job security and benefits than their non-tenured colleagues.

According to the American Association of University Professors (AAUP, 2019), tenure has been embedded in higher educational policy since 1940. It has remained the cornerstone of higher education, promoting broader values related to academic freedom and freedom of speech (Eastman & Boyles, 2015). As Curnalia and 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 note 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.

The means by which academic freedom is protected and labor rights are ensured may, however, 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 administrators attempting to balance the need for financial solvency with their commitments to ideals like academic freedom.

Preserving Institutional Rights and Shared Governance

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 legal rights, including the right to due process. Part-time and untenured faculty do not enjoy the same legal protections 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 in relation 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, nor is it solely about labor rights or academic freedom. Rather, shared governance empowers tenured faculty to influence organizational decisions, to determine the direction of research and academic programs, and to shape the university's stance on major political, economic, or ethical matters. As tempting as it may be for some institutions to adopt a shared or collaborative governance model, many have instead opted for the opposite. Many institutions have shifted toward hierarchical, corporate-style governance structures — creating top-heavy organizational frameworks that preclude tenured faculty from having a voice in institutional decisions or social responsibility (Eastman & Boyles, 2015). This migration away from shared governance has in many ways undermined the rights of tenured professors, and has done so even more acutely 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, can commit crimes, engage in unethical behavior, or fail to perform their professional duties according to the provisions of their contract. Proving that a 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 dismissing a tenured faculty member is typically long and procedurally demanding due to contractual provisions, it is certainly possible for an administration to make such decisions.

Financial Exigency and Due Process

Declaring Financial Exigency

Setting aside individual or personal grounds for terminating a tenure contract — such as a breach of the code of ethics — administrators can declare financial exigency. A financial exigency is essentially a financial emergency: a situation in which the university faces potential demise unless it totally restructures its budget and reallocates resources. Universities may experience financial exigency as a result of sudden budget cuts caused by reductions in government spending, the loss of a major corporate donor, or declining enrollment. In these situations, administrators face difficult choices, one of which may be downsizing. Even tenured faculty members are not immune from the effects of financial exigency. Tenured positions may be at risk if the administration can demonstrate that the financial exigency was genuine and directly warranted the elimination of faculty positions or entire academic departments.

Due Process Protections

A university cannot, however, simply declare financial exigency in order to remove tenured faculty. The financial emergency must be proven and genuine, 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 through which they may challenge administrative decisions. Due process balances institutional rights with the labor rights of tenured faculty. Administrators can explore multiple methods of mitigating financial exigency, including raising tuition rates — though this presents additional ethical dilemmas (Mitchell, Palacios & Leachman, 2015). Within the provisions of the applicable labor union agreement, the specific methods of exercising the right to due process may vary, but would typically entail a complete review of institutional policy, contractual obligations, and state law.