Untenuring Tenure: Dan Subotnik on Indefinite Tenure

Ed. note: Professsor Dan Subotnik's short essay below calling for a reexamination of university tenure echoes themes heard in recent discussions of the role of tenure in K-12.

Untenuring Tenure by Dan Subotnik (Touro Law)

A specter haunting the academy today is of an intellectually wizened white male professoriate refusing to step aside for au courant, energetic, ambitious, and of course diverse younger faculty. Part of a larger concern with tenure itself, the fear in question is that tenured old-timers, of which I am one, are holding fast to financial and administrative perks, limiting institutional control and stifling institutional development in the process.    

Sometimes the fear is expressed openly.  Intractable seniors, according to a recent, widely debated Chronicle Review post (“The Forever Professors”) often “crush the young” through their “selfish[ness].” A law school colleague argues that, having enjoyed our share of university bounty, responsible seniors should facilitate succession by quickly and gracefully exiting the stage.  Such a development might be contrasted with what is actually happening today:  seniors in effect extorting rich buyouts to retire.

More of the time, of course, the critique is not explicit. Yet who among us seniors has not felt the sting of “what are you still doing here, gramps” looks from junior law faculty and deans?  

A visceral response to critics may be tempting here, but we must show our maturity. Beating up the young for impertinence would show both ignorance and hypocrisy.  Inter-generational, oedipal struggle, we have learned, is the way of the world, and, it must be admitted, many of us felt the same way 30 years ago about our predecessors in law.  They would never have gotten their jobs in the competitive environment of 1985, we self-righteously told ourselves, just like we would not get ours in today’s environment, when two good law review articles are required just for a job interview.    

We must also admit that the young are not wrong to be concerned about their future.  Well known is that law schools are experiencing budgetary upheaval.  Our schools are hurting badly. There are many more law school seats and 50 more law schools now for the same number of students as attended law school 40 years ago.  In this harsh setting, it is not surprising  that senior faculty make up an ever larger fraction of faculty, that raises are skimpy or nonexistent, and, above all, that the risks of dismissal fall most heavily on those with least seniority. Tenure may lie at the very heart of academic freedom, but the foregoing problems are fairly laid at its doorstep. Dismissal “for cause,” as is usually required, has proved an exceedingly heavy burden for academic institutions.    

  

In fairness to the young, tenure was never conceived as a life estate.  Yes, formulations of tenure rights—and obligations-- have not specified any endpoint. But this is not because anyone contemplated faculty staying indefinitely; indeed a broad-based study of tenure in 1973 resulted in a recommendation that each school adopt a mandatory retirement policy.[1] In 1990 the American Council on Education testified in Congress against truly indefinite tenure. Admittedly, for a university to eliminate tenure for seniors  now would not only diminish its ability to compete with other universities for faculty but, more important, it would violate the Age Discrimination in Employment Act (ADEA).

Congress understood in the ADEA that human beings march towards decrepitude at differing paces.  Thus it was wrong to stereotype individuals based on group characteristics.  Some of us, indeed, are as productive—however defined--as our junior colleagues, and in some cases better scholars and teachers because of the range and depth of our experience.  A 93 year-old colleague has not lost a beat and heads an important committee of the N. Y. State courts.  Seniors provide wisdom and valuable “institutional memory,” as a top 15 law school dean recently reported (although this dean still offers faculty generous incentives to retire).

Underpinning the ADEA was surely another factor. Some seniors desire income more than others.  Perhaps they have children or spouses with special needs or they have made a mess of their financial lives. Perhaps having long-lived ancestors and, feeling good most of the time, they fear that they will outlive savings predicated on today’s increased life expectancies.  In short, if, as economists uniformly tell us, individual utilities for income are widely divergent, is there any basis for us to dispute them?  

Individual faculty members might have still other reasons for ignoring decanal calls for retirement--as seven out of ten faculty members did at the school previously alluded to. Apart from the question of what to do upon retirement, we have no way of knowing the institutional consequences. Will money saved go back to the university and not reallocated for law school purposes?  Will it be used to hire administrators rather than faculty?  Most distressing, might sacrifice on our part actually serve to enhance the position of colleagues, younger or older, whom we know to be less valuable to our institutions than we are? 

Where does leave us?  The answer would seem clear. An industry-wide response is needed. Tenure is not a public good. Most Americans are subject to at-will employment.  When no longer able to do their jobs, they are required to leave. There would appear to be no reason to extend tenure protection to senior academics, say those over 70.   Our academic freedom is grounded in the lower risks stemming from the shortness of our future careers; we can afford to take risks.

What limiting tenure would do is to allow deans to push out unproductive seniors without the necessity of a “for cause” showing.  Faculty receiving notice might be given two years to actually leave. This would give some effect to any notion that 70 is the new 50. Faculty receiving notice could, of course, contest the decision, but the burden would be on them to show age bias. Experience says that that will not happen often. Productive people, of course, could be asked to stay.

Now if only the American Association of University Professors will rework the tenure rules which they formalized 100 years ago and which our universities have since widely adopted.  And if only the courts or perhaps Congress will go along.  

Dan Subotnik is Professor of Law at Touro College, Jacob D. Fuchsberg Law Center.

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[1] A Report and Recommendation by the Commission on Academic of Higher Education in Higher Education (1973) 56.