The Allure of Tenure
To the new or junior faculty member at a prominent college or university, tenure can look very much like the golden ring, apple, nest, goose, or parachute–pick your analogy. Tenure holds all the promise of a secure, long-lasting, and rewarding job and career within an intellectually invigorating community. Tenure ensures success. Tenure also means high professional standing and reputation. Money isn't everything. Security, stability, and community mean a lot. A professional can do little better than to pursue and achieve tenure.
The Challenge of Tenure
The challenge of tenure is getting there. Tenure track professors know that gaining tenure generally requires meeting scholarship, teaching, and school service standards. Tenure track professors also know that gaining tenure requires good faculty relationships, avoiding faculty factions and conflicts, and having a tenured champion. Gaining tenure is supposed to be the hard part. Every tenure track professor knows it. Those challenges are part of the deal.
The Problem with Tenure
But the problem with tenure is that it often doesn't work that way. Systems are imperfect because imperfect humans design and run them. As rational as most faculty members are, not all faculty members reviewing, advising, and voting on tenure are always thoughtful, fair, and balanced about their decisions, words, and actions. Misunderstandings, personality conflicts, and other issues can develop affecting a tenure review and application. Tenure committees and votes are not always fair. Faculties can sometimes make arbitrary and capricious tenure decisions. They sometimes grant tenure to individuals who least deserve it while denying tenure to the best qualified to teach, publish, and serve. See below examples of what can go wrong and what you may be able to do about it, after first ensuring that you understand what tenure is, what it accomplishes, and how it works.
What Tenure Is
Tenure is a college or university's promise that it will continue to employ the professor enjoying that status unless the professor gives the school good cause, in some objectively provable form of sanctionable misconduct, to relieve the professor of the employment. College or university tenure policies, generally written by, negotiated with, and approved by the school's faculty, establish tenure rights. You should find your school's tenure policy cited in your letter or contract of hire. This tenure policy at the University of Washington is an example. So is this tenure-track handbook at Harvard University.
What Tenure Accomplishes
Tenure isn't just about job security. Union labor agreements protecting workers from dismissal without good cause can accomplish the same thing. Instead, accreditors assume that faculties govern a school's academic function. Administrators are not to dictate what a school teaches. The theory is that professors know better. Tenure ensures that administrators cannot pick and choose professors based on their views. Tenure preserves a sphere of academic freedom, believed to be necessary for effective teaching and scholarship, and the advance of knowledge.
How Tenure Works
Tenure generally involves hiring professors into positions that the school and its faculty members recognize lead toward tenure. Those initial tenure track positions often bear the designation of assistant or associate professor. Tenure track assistant or associate professors must then meet teaching, publication, and school or professional service requirements to advance toward tenure over a clearly defined period. Assistant professors may advance to associate professors and then to full professors when finally meeting all tenure requirements, serving for the required period, gaining a tenure committee's positive recommendation, and surviving a faculty vote. Tenure is up or out. Assistant or associate professors who don't advance along the defined timeline are generally out of a job or moved to the non-tenure-track instructor or adjunct status.
Differences Among Tenure Systems
Tenure systems differ. Some systems have only one level of tenure track position before the candidate reaches fully tenured professor. Other systems have two or more levels with a significant review and potential for non-renewal at each level. Some systems have relatively short periods of required faculty employment, perhaps just three to five years, before the final tenure vote and elevation to full professor. Other systems have longer periods of required faculty employment, perhaps five years at each of two levels totaling ten years of service, before the final vote and elevation to full professor.
Similarities Among Tenure Systems
While the particulars vary, the common thread to tenure systems is their job protection. Schools do not dismiss tenured professors without substantial grounds and without satisfying laborious deliberative procedures generally involving faculty review and votes. The concept is that only the faculty can relieve a professor of tenure, and only when the school's administration shows the faculty that the faculty must in good conscience do so because of compelling grounds involving something other than academic freedoms. Check your school's tenure policy. The tenure policy at the University of Washington permits the removal of a tenured professor only for incompetence, neglect of duties, incapacity to perform, sexual harassment, felony conviction, or scholarly misconduct substantially affecting the school.
Who Makes the Call
Tenure policies can differ on who decides whether a tenured professor should face removal. But tenure systems generally permit the accused professor to invoke a faculty committee or panel review of the administrative recommendation to terminate, sometimes followed by a vote of the full faculty. The Trustee Policies and Regulations Governing Academic Tenure at the University of North Carolina are an example. Under those policies, administrators may determine to dismiss a tenured faculty member for one of the listed substantial causes. But the faculty member may demand a faculty committee's review of the dismissal recommendation. The UNC tenure policies clearly indicate their purpose to preserve academic freedom against administrator interference.
In practice, tenured professors sometimes do leave quietly without demanding faculty committee review and protection. Tenured professors who know that they have committed employment misconduct worthy of dismissal may also know that they do not have the support of their faculty colleagues. Indeed, they may know that their colleagues would prefer to be rid of them. So in practice, administrators often make the call to dismiss, based not only on their need to police employee practices but also on their read of faculty politics.
Limits on Faculty and Administrator Discretion
Tenure track professors who fail to advance toward tenure, and tenured professors who suffer dismissal despite their tenure, may have recourse against the school for reinstatement. If, for instance, administrators or the faculty have violated the tenure policy, the affected professor may seek the policy's enforcement through administrative channels and perhaps also with court review. But professors also have the protection of state and federal anti-discrimination laws. Getting passed over for tenure or getting dismissed as a tenured professor because of race, ethnicity, sex, age, disability, whistleblowing, or other protected categories and characteristics can lead to administrative or legal action for reinstatement.
Public colleges and universities may also owe a tenure track or tenured professor due process before termination, including fair notice and a fair hearing before an impartial decision maker. Due process violations may result in administrative or legal recourse and reinstatement. Tenure track and tenured professors at public colleges and universities also have First Amendment, Fourteenth Amendment, and related civil rights protecting their freedom of religion, free speech, and other liberties. School violation of those rights may lead to reinstatement.
What Can Go Wrong with Tenure
Tenure proceedings have common problems. If you are facing tenure disputes and issues, you are not alone but are instead one of a large number of disaffected professors suspicious of the operation of tenure systems. Here are some of the common problems that tenure track professors and tenured professors may face, despite the promises of an orderly tenure system:
- the faculty and school fail to clarify whether a position is a tenure track or non-tenure track position;
- the faculty and school appoint a tenure track professor too near the due date for tenure review for the candidate to complete scholarship, teaching, and service requirements;
- the faculty and school fail to timely provide the correct, updated tenure policy and handbook to a candidate or provide incorrect information misleading the candidate as to requirements;
- the faculty and school change tenure requirements midstream during the course of a candidate's pursuit of tenure, disadvantaging the candidate;
- the faculty and school fail to appoint a tenure mentor to advise the candidate on tenure requirements;
- the faculty and school fail to appoint a tenure review committee timely to complete a tenure recommendation in time for the necessary faculty vote on the tenure schedule;
- the faculty tenure review committee does not complete its work timely and does not produce a written report and recommendation for faculty review before a scheduled vote;
- one or more tenure review committee members act arbitrarily and capriciously toward the candidate, sabotaging the candidate;
- school administrators, tenure review committee members, or faculty factions use the candidate's political views, political or social associations, or religion to deny advancement, violating First and Fourteenth Amendment rights;
- school administrators, tenure review committee members, or faculty factions use the candidate's race, ethnicity, sex, age, disability, whistleblowing, or other protected category or characteristic to deny advancement, violating anti-discrimination laws; and
- school administrators and faculty committees ignore the notice and hearing requirements for non-renewal or dismissal decisions allegedly based on good cause, violating the candidate's due process rights.
What You Can Do About Tenure Issues
Although you may at times feel like it, you are not helpless in the face of tenure issues. You may well have things you can do to improve your situation. And the first thing you should do is to find out what happened. If you suffered a passover for advancement along your school's tenure track, or suffered dismissal as a tenured professor, the faculty committee members or others responsible for your evaluation and termination owe you an explanation. Sit down with them to find out what happened. They may have written reports and recommendations you can request and review. Ask colleagues who admire and respect you, and whom your passover for advancement disappointed. Ask administrators, too. As much as you can, get to the bottom of what happened so that you can evaluate your recourse. You won't know what you can do to gain reinstatement until you know what happened.
You should also learn your school's review and appeal procedures. Once you learn of your non-advancement or termination, you may have a relatively short time within which to seek a review or appeal to another official or panel. You may have procedural options, but you need to find out what they are, how to invoke them, and when to act before those options expire. Procedures can be your friend and protection when you don't know what happened or you know what happened and want to do something about it.
How Representation Can Help
Fortunately, our Education Law Team may be able to help you gain relief from your tenure issues. The first thing we may be able to do is to help you find out what happened. If you were unable to obtain writings, records, and explanations for your non-advancement or termination, our request on your behalf, through oversight channels, should produce results. We may also be able to help you find out what administrative procedures exist to review and reverse your adverse decision, and help you timely and effectively invoke those procedures. We can request and attend hearings, and help you prepare for those hearings for their best effect. We can also help you identify, prepare, and pursue appeals to other officials or bodies. And if necessary, we may be able to help with court action to enforce your legal rights.
Premier Education Law Services
Don't go without the skilled and experienced representation you need for your tenure issues. The Lento Law Firm's premier Education Law Team is available to represent you, no matter your location, program, or school. We have helped hundreds of college and university professors and employees preserve their employment. Call 888.535.3686 or chat with us now.
