Legal Commentary

Jason Ehrenberg is a partner at Bailey and Ehrenberg PLLC, a Washington D.C. firm with a specialty in employment, benefits and higher education law.  He regularly  advises individual faculty members and administrators.  A 1999 graduate of the University of  Michigan Law School, he was raised in an academic family.  He was interviewed by email by Jack Chin.

Along with its many virtues, tenure is alleged by some to be a shield for incompetent professors.  As one former professor rather colorfully expressed:  ?It has become a system that protects incompetent faculty, and a shield behind which many faculty take their salary, teach their courses from yellowed notes, do little real research, and spend much of their time socializing, pursuing personal interests, a hobby, or promoting their politics.?  While the vast majority of faculty do not fit that description, it is unquestionable that firing tenured faculty is exceedingly uncommon.   In your view as a practicing lawyer, is that because the law surrounding tenure makes it virtually impossible to fire professors other than for the most serious misconduct, or because institutions by tradition do not have the stomach for it?  

There are several different forces at work that explain why America?s colleges and universities typically do not terminate lesser-performing tenured faculty.  With regard to the ?not having the stomach for it? theory, most institutions that subscribe to the principles  jointly agreed to by the AAUP (and leading American colleges and universities) many years ago have fairly detailed procedures governing the discharge of tenured faculty members that require, at the first level, that faculty be judged by their peers.  And, these peers more often than not do not have the stomach to vote in favor of terminating their peers (likely because they fear that they will be setting bad precedent that can come back to haunt them down the road).  Another significant force that explains the low-number of terminations is that there are several tools that administrators and faculty may use ? apart from the aforementioned detailed procedures ? that allow them to push lesser-performing tenured faculty out without having to reach a termination decision.  Under this ?constructive discharge theory,? administrators utilize several tools to encourage under-performs to ?voluntarily? terminate their own employment.  Administrators? ability to (1) increase teaching loads to uncomfortable levels, (2) threaten faculty with embarrassing discharge procedures, and/or (3) hold constant or even reduce under-performing faculty salaries, are just a few examples of the tools colleges and universities use to coax under-performers out the door without having to reach termination decisions.

If a university provost told you the university wanted to implement an evaluation system that would enable them to terminate the worst performing tenured faculty, and asked you to advise them about whether that was possible, or worth it, what would you say?

Such an evaluation system could be a worthwhile endeavor -- as long as it is properly implemented and utilized.  The key is to establish meaningful post-tenure review processes (which now have been done in many publics and increasingly privates are beginning to think about this) that start early on in a given faculty member?s career (so that age discrimination issues are not present) and that include as a first step constructive systems to try to improve the performance of under-performers.  If these systems do not yield improved performance, than moving to disciplinary procedures is easier to do.  Often the mere existence of good post-tenure review processes leads to enhanced performance.  An added benefit of such systems is that when they are applied properly (when procedural due process is present), they can be a good defense to discrimination and wrongful termination claims. 

Can an institution terminate those whose performance in teaching, service and scholarship is distinctively below that of others?

Yes it can if it follows appropriate faculty governance procedures ? i.e., if procedural due process is present.

How much authority does an institution have to change the working conditions of faculty?  For example, in many law school classes, the grade is determined by a final exam, which is also the only written assignment.  A faculty and dean might vote to require midterms, or writing assignments.  Could a professor who failed to comply be fired?

Conceivably, as long as procedural due process is present, an institution has significant authority to change the working conditions of faculty (to the extent we are focusing on the types of working conditions outlined in your question).  To the extent that a termination recommendation comes from a committee of faculty peers, the administration should have a fair amount of cover. 

More generally, however, focusing on the perceived incompetence of some tenured faculty really misses (in my view) what is going on in American higher education.  The share of faculty nationwide that is full-time has been steadily decreasing ? as private and public institutions increasingly are turning to part-time faculty adjusts to (1) more cheaply meet teaching needs, and (2) allow institutions more flexibility in adjusting their work forces.  See Table 1 below.

                                Table  1

                                Percentages of Instructional Faculty That Are Full ? Time

                                in Degree Granting Institutions in the United States

Source: U.S Department of Education, Digest of Education Statistics: 2008 (Washington DC, 2009), table 248  (http://nces.gov/programs/digest/d08 ). Instructional Faculty include faculty with professorial ranks including instructors, lecturers, and adjunct or interim professors. The category excludes graduate students with titles such as graduate assistants or teaching fellows.

Moreover, as Table 2, below, indicates, within the declining share of faculty that is full-time, the proportion that are not on tenure tracks has almost doubled over the last thirty or so years.  Put simply, tenured and tenure track faculty are an endangered species.

                                                                    Table  2

           Percentage of Full-Time Faculty with Tenure or on Tenure-Track Nationwide

                                   at Title IV Degree Granting Institutions

Source: U.S. Department of Education, IPEDs Fall Staff Surveys