Friday, April 11, 2008

The Relationship Between Litigation and Tenure

Sch_building Walter Olson over at Overlawyered, commenting on a post written by Robert Weissberg, puts forth this provocative commentary:

As universities grow apprehensive of lawsuits filed by junior faculty hired for tenure-track positions but then passed over for tenure, they are accelerating the trend toward classifying more junior positions as non-tenure-track -- hastening, perhaps, the eventual demise of the tenure system entirely. (Robert Weissberg, Minding the Campus, Apr. 10).

In turn, Weissberg writes:

Some predictions about tenure. First, as assistant professors become more skilled at defending their jobs, universities will increasingly abandon tenure track positions. You don't hire what you can't fire. This is already happening with a vengeance. Half of all new higher education positions are now non-tenure track: adjuncts, visitors, clinical professors, lecturers and so on. Second, putting hard-to-find women and minorities on the tenure track means imposing staff reductions elsewhere, and since diversity hires "take care of their own," the white male - of any ideological stripe - may join the Polar Bear on the soon-to-be extinct list (even in budgetary crises, funds to hire members of "under-represented groups" always exist). Third, as universities push harder to diversify the tenured faculty ("retention" in administration-speak), promotion standards will inevitably decline, and white males unfairly passed over may justifiably, if reluctantly, join the litigation culture. These multiplying, expensive, sometimes embarrassing court battles, in turn, may further weaken tenure as a system given the effortless options to hire and then easily fire plentiful non-tenure track employees. That universities themselves control the size of the academic proletariat by granting degrees in the absence of available jobs can only push this process even further. In short, the university tenure system may slowly disappear though for reasons nobody would have predicted.



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» Will litigation kill academic tenure? from Overlawyered
As universities grow apprehensive of lawsuits filed by junior faculty hired for tenure-track positions but then passed over for tenure, they are accelerating the trend toward classifying more junior positions as non-tenure-track -- hastening, perhaps,... [Read More]

Tracked on Apr 11, 2008 10:14:52 PM

» Litigation, Money, And The Demise Of Tenure from The Faculty Lounge
First, Robert Weissberg, a political science prof at Illinois, suggested that tenure litigation would kill tenure (at least for that most endangered species, the white male.) Then Walter Olsen, at Overlawyered, agreed at least as to the core idea: liti... [Read More]

Tracked on Apr 12, 2008 10:38:06 AM


This would be a good argument if it were true, which it's not. Lawsuits about denials of tenure (1) are among the most impossible to for a plaintiff to win, and (2) are rarely filed because suing your university would turn you into a pariah. Because academia is one of the fields of employment with the lowest risk of litigation, I see little reason to think that schools will change their whole employment structure (i.e., the tenure system) based on a quite minimal litigation threat. I've written about this, citing all the cases applying an "academic deference" doctrine to explain why such cases almost always lose:

Posted by: Scott Moss | Apr 11, 2008 9:38:12 AM

Agreed with Scott. I think that the move towards non-tenure track positions (especially w/r/t female faculty) might be attributed to other reasons, mostly economical (although somewhat related to the reduced allocation of resources to higher education in state budgets more generally): stretched-thin institutional resources, depressed economy more generally, burgeoning student rolls without commensurate increase in resources needed to accommodate the students, structural/organizational forms of discrimination, etc. Adjuncts and non-tenure track faculty are cheaper and easier to get rid of. Also, as contract-agents, they're not considered employees for the purposes of employee benefits. One of my colleagues in my program is a non-tenure track postion at a nearby law school, and it's appalling w/r/t FMLA leave.

Posted by: Dana Nguyen | Apr 11, 2008 1:49:58 PM

Scott has a good point but I pull something else out of Olson's post. It's the fear of litigation itself (costly, embarrassing, distracting, bad for morale)that creates the disincentive, not the fear of *losing* the litigation

This is analogous to the reluctance so many employers have to giving substantive references. It's not because employers lose many defamation suits because of references. With the qualified privilege, they hardly lose any at all. What they're afraid of is being sued. That may not be entirely rational, but it's influential nonetheless.

In the university setting, the fear of litigation is actually more reasonable. So many junior faculty fall into some protected class that they'll usually have a legal peg to hang their suit on. Rejected candidate X may not be able to prove racial, sexual, religious, or other discrimination, but universities hate to be charged in public with discriminating. Add in the concerns for discovery turning up "bad numbers," misbehavior, offensive comments, and the like, and you can understand why university administrators would like to avoid the risk.

And that feeds back into Olson's other point. It's clear universities are drastically reducing the percentage of faculty on the tenure track. There are lots of reasons for this, of course, possible litigation being just one. A much bigger factor, I suspect, is that universities are more conscious of how tenure limits flexibility. When higher education did pretty much the same thing year after year and had a pretty homogeneous pool of candidates, that wasn't much of a problem. Now that universities periodically reinvent themselves, want to reallocate resources from declining areas to growing ones, and want to "diversify" the composition of the faculty, a high percentage of tenured faculty makes change difficult. I wouldn't predict the demise of tenure, but I would predict a continued decline.

Posted by: Dennis Nolan | Apr 11, 2008 3:15:29 PM

But Dennis, if Universities not only rarely lose, but rarely get sued, then any such "fear" would be so irrational that there's reason to doubt it exists. Moreover, Olson and Weissberg offer absoluetly no evidence of (1) increasing rates of lawsuits against universities, or (2) increasing success of lawsuits against universities.

Let's also note the big picture: (1) Weissberg insists that racism doesn't hold back African-Americans because there's a lack of "scientific evidence" it does (his quote quote is, "no scientific research demonstrates how white racism – as a mental state among whites – incapacitates blacks"). (2) Yet Weissberg now insists, without anything approaching "scientific evidence," that minorites are holding back whites (from his post, " since diversity hires "take care of their own," the white male - of any ideological stripe - may join the Polar Bear on the soon-to-be extinct list").

In sum, Weissberg refuses to believe that blacks suffer disadvantage at the hands of whites because there's no "scientific evidence" of it. Yet he thinks the far-less-plausible reverse, that whites suffer disadvantage at the hands of blacks, based on a cockamamie theory supported by no evidence at all -- that women's and minorities' discrimination lawsuits (which in reality are trivially infrequent) are to blame for a lack of tenure-track hires and whites' lack of job success. There's a word that'd be apt to describe a person who inconsistently bashes claims of discrimination by minorites while credulously buying the flimsiest unsupported claims of discrimination by whites, but I'd rather not share it in a public forum; let me settle on noting that Weissberg's glaring inconsistency about which discrimination claims require "evidence" makes clear that he is not a serious man to be taken seriously.

Posted by: Scott Moss | Apr 11, 2008 7:36:09 PM

You miss my point, Scott. I was writing about Olson's comments about the connection between litigation and tenure, not about Weissberg's substantive statements. It might initially seem unreasonable for universities to worry so much about suits they seldom get and even more seldom lose, but on a little further analysis it's reasonable. Universities do get sued (and anecdotally, not scientifically) it seems significantly more common. Years ago, someone denied tenure would usually drop down the education pecking order or go into another line of work. Suits were almost unheard of. That's certainly not the case any more. And some of those suits are successful or at least strong enough to force good settlements.

More importantly, though, suits charging discrimination, harassment,or similar misconduct impose high costs (bad publicity, morale problems) regardless how the suits turn out. Even if the university wins at the end, the harm has already been done. If I were a university president, provost, or dean, I'd do what I could to avoid such harms. That's one reason (only one of many, as I wrote earlier) why hiring temporary or part-time faculty, contract faculty and researchers, and graduate students seems less risky than adding tenured faculty.

Posted by: Dennis Nolan | Apr 11, 2008 8:17:13 PM

But Dennis, if you accept the premise that tenure-track faculty lawsuits are unlikely to win, then how would universities benefit by hiring part-time faculty or untenured faculty, who also could sue? I mean, if "Class A" employees don't often sue, how does it help to replace them with "Class B" employees who are just as able to sue?

Posted by: Scott Moss | Apr 11, 2008 9:32:21 PM

Let me go further: replacing tenure-track employees with part-timers or fixed-term contract employees means MORE turnover -- more hiring decisions, more firings, more contract non-renewals, etc. Each hiring/firing decision is an additional risk of lawsuit, so replacing longer-term (tenure-track) employees with shorter-term employees makes NO sense as a way to avoid lawsuits. Yet another reason Weissberg's assertions make no sense....

Posted by: Scott Moss | Apr 12, 2008 1:43:28 PM

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