Legal Commentary

Brian Leiter has been making intemperate attacks on critics of tenure lately. His immediate target is Mark Taylor, whose proposals to abolish tenure won him a lot of academic ire. Brian and I both dislike the style and substance of Taylor's type of philosophical work, so I attribute some of Brian's sharpness of tone to the admitted egregiousness of his target's prose. But Brian's arguments for tenure do not, I think, stand much scrutiny.

The core of Brian's argument is that tenure protects professors' right to say or write controversial things. But I do not see why professorial freedom of expression could not be adequately safeguarded by a much narrower rule barring dismissal for viewpoint-related reasons. This sort of First Amendment-style protection would safeguard professors' rights to make controversial statements without providing gratuitous insulation for professors who are simply lazy, incompetent, or corrupt. Why not require the sacked prof to set forth a prima facie case that their dismissal was the result of something controversial that they said or wrote? This burden could be light: The plaintiff might simply proffer something -- anything -- written or said within a year or so of dismissal that could remotely be regarded as controversial. The employer would then bear the burden of showing that the dismissal was unrelated to the proffered writing or utterance. Think of such a burden-shifting framework as roughly analogous to the Griggs disparate-impact test. The benefit of such a rule is that it not only makes dismissal of incompetent, lazy, or corrupt professors easier but also gives all profs more of an incentive to write controversial stuff, if only to have a prima facie case when the pink slip shows up in the mailbox.

In any case, I would not want to be accused of hypocrisy like the hapless Taylor who offered his tenure-abolishing proposal only after he retired. So I hereby urge that everyone's tenure -- including my own -- be revoked, to be replaced by my First Amendment-burden shifting alternative. By all means, let me know why my proposal is a bad idea with full-blooded Leiter-esque scorn. (Your words won't disconcert me, as I've already produced my prima facie case -- in this post! -- protecting me from dismissal in a post-tenure world). But, if you are inclined to criticize my position (or prose or personality), please avoid the following fallacies (after the jump).

1. "One has a 'blatant conflict of interest' in urging the abolition of tenure if one no longer has an interest in preserving it because one is retiring, or because one has an interest in an alternative system of retaining academic employees." Brian makes this assertion twice -- once, because Taylor attacked tenure upon retirement and a second time because Taylor apparently was involved in marketing online education. But the obvious response is: Tu Quoque. Any currently tenured prof has a conflict of interest far more blatant than Taylor's: They benefit enormously from the system that they are defending. Indeed, this benefit likely explains the passion with which profs have laid into Taylor. By contrast, a retired guy has no dog in the fight one way or the other.

2. "The administrative costs of policing Hills' First Amendment rule would be too high, because adjudicators would have to discern the motive underlying the dismissal." Given that Brian wants to strengthen dismissal "for cause", this complaint is not available to him, because "for cause" dismissal always requires inquiry into the reason for firing someone. Indeed, I think that Brian's unspecified strengthening of "for-cause" dismissal and my own First Amendment proposal would roughly converge, as the "cause" justifying dismissal should generally include any good-faith, basically legitimate work-related reason, which would exclude few justifications other than the professors' controversial expression under my proposal.

3. "Being an academic is so very different from every other kind of employment that the normal discipline of being threatened with termination for being lazy or incompetent is somehow unnecessary." Brian quoted approvingly a post by Marc Bosquet who essentially suggests that, like families, neighborhoods, poker games, churches, etc, faculties are one of those social organizations and relations that just should not be governed by the market. Brian regarded this paragraph as a "fine excoriation," but it strikes me as a fine example of the sort of shrill, lazy posturing that one would expect from someone with a vested interest in preserving an institution that they are defending. Faculties provide services in return for salaries, Marc: The analogy between profs and other employees is obviously much closer than the analogy to relationships that lie outside the marketplace. So stop picking on that straw man of universal commodification, and address the real issue: Explain why this one sort of professional employee should get protections denied to virtually every other highly educated person who writes and speaks for a living -- journalists, lawyers, doctors, priests, businesspeople of every stripe, salesmen, actors, etc. The profusion of market-like incentives in academia -- summer research money, for instance -- suggests that, like other employees, profs respond to normal business incentives in the usual way.

4. "The market sucks: We should not abolish tenure for academics but rather should extend tenure to every other sort of employee." Much of the diatribes by academics defending tenure have this anti-market tone -- which is fine by me: Of course, if you think that the retention arrangements ordinarily produced by labor markets generally fail, then they probably fail for academics as well. Assuming, however, that you, as a consumer, appreciate the power to fire your plumber, lawyer, doctor, etc., when you believe that they provide poor service, why should not universities, representing their tuition-paying customers, not have a similar prerogative? In other words, do you have an argument for why faculties are so different from other sorts of professional employment that they should be governed by a radically different retention regime? If so, why would this difference not be satisfied by my First Amendment rule?

5. "Why rock the boat? There really is no problem with lazy, incompetent, or corrupt profs -- and critics of tenure have not produced data to suggest a problem." The argument that critics of tenure lack data of a productivity problem with tenured profs invites a game of "presumption tennis": The defenders of tenure lack data showing that there is not a problem with tenure, so why is the ball not in their court to produce data? Who bears the burden of proof here? Tenure is, after all, an extraordinary departure from the norms governing ordinary employment. It deserves an extraordinary justification. Getting reliable data about faculty misbehavior is extremely difficult: How many deans would voluntarily provide accurate information about the presence on their faculty of repeat sexual harassers, chronically tardy and unprepared teachers, members who had not published in decades, committee members who did not bother showing up for meetings, profs who were routinely months late getting their exams graded, and so forth? Such actions impose extraordinary costs on an institution, shaming it in the eyes of students, alumni, and administrators. I have seen all of these tendencies among academics, but, for obvious reasons, I am not naming names or even counting noses. So just yelling, "the ball's in your court to produce data" when data's not to be had is not sufficient to justify a practice that would intuitively seem to produce perverse incentives in at least a significant number of cases. (If you think that ordinary employment rules don't apply, please re-read (3) above).

6. "Tenure is not a 'job for life,' as there is always "for-cause" dismissal." Brian actually wrote this down in a place where the general public can read it. If typescript could blush, this assertion would glow bright red. Come on, Brian. You and I have been in this academic racket long enough to know that scraping a a tenured prof out of his position "for cause" is as easy as scraping meaning out of Judith Butler's prose: It takes forever, and, in the end, it is not worth the effort. (Okay, a gratuitous slap for which I preemptively apologize: Insert your least favorite unintelligible philosopher or social theorist if you are a Butler fan). I have been in this business for sixteen years now, and I have never -- never -- seen a prof fired for cause on any of the faculties at which I have visited or been a full-time employee. I have questioned vice deans, associate deans, and full deans assiduously on the question of what it would take to fire someone for cause, and they have uniformly informed me that it would take an act so egregious as to approach a felony to justify the expense and deep embarrassment and trauma of termination proceedings. Yes, this is an anecdote, but I am blogging, not writing a research article. Moreover, I could not get better data if I tried. (If you do not know why, re-read (5) above).

Admittedly, faculties will still face costs in firing slackers under my First Amendment rule. The advantage of my proposal is that, in those cases where plaintiffs could not make their prima facie case, university administrators would not need to air dirty laundry at all, and, in cases where the prima facie case was weak -- say, plaintiffs' platitudinous statements expressing viewpoints that the plaintiffs' colleagues and dean obviously shared -- those administrators could simply respond by showing that the expression could not possibly have been the cause of the dismissal.

But proffering academic freedom as the justification for a retention policy that goes far beyond this purpose requires better justifications than special pleading, presumption tennis, ad hominem and ad personam scurrilities, and other hand-waving techniques that seem prevalent in defenses of academic tenure. These sorts of persuasive only to someone whose job depends on winning the argument.