About Tenure

At Balkinization, Brian Tamanaha posted “Straight Talk About Tenure” in which he criticizes the tenure system for giving powerful protection to lazy, under performing law professors. Every faculty has a few bad apples, but I think Tamanaha might underestimate the ways that many can be “persuaded” to move on, although admittedly they sometimes do this by becoming some other law school’s problem. In addition, David Luban replied in comments:

… The group most in need of tenure protection of their academic freedom is not law professors, nor left- or right-wingers in the humanities or social sciences. It is natural scientists – particularly in public universities – working on health and safety issues pertaining to Big Pharma, Big Oil, Big Anyone. It takes little imagination to see that, with billions of dollars at stake, major industries would pressure boards of trustees to fire anyone studying bad health effects of (say) Vioxx, or petroleum emissions. Private universities might be somewhat more immune from special-interest pressure, but they too could expect economic clout to be wielded to silence their pesky scientists.

But set scientists aside, and turn to law professors. Here, the test case of what happens without academic freedom is the campaign against law school environmental clinics – at the University of Pittsburgh, the University of Oregon, the Universities of West Virginia and Wyoming, and above all Tulane. (I wrote about this a few years ago in Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers, 91 Cal. L. Rev. 209, 236-40 (2003).) Each clinic began projects that gored oxen of local business interests, and each was subjected to a withering campaign to destroy it or make its work more difficult.

I don’t disagree with you that some law professors take advantage of tenure to cut their responsibilities to a minimum. The way to handle that is through merit raises (or rather, their absence) – if the dean sees that the professor is an exploiter. Or by asking those who do no research to teach additional sections, or take on heightened committee work or administrative assignments. …

Luban is correct, and it isn’t only the environmental clinics that have been pressured. Classes like “Gender and the Law” or “Race and the Law” wouldn’t even get taught in some law schools if savvy deans couldn’t, in the face of politically connected hostility, diplomatically smile, shrug, and say of the professor offering the course, “S/he has tenure, what can I do?”

–Ann Bartow

Update from a helpful commenter: Catharine MacKinnon talks a little about tenure and the uses (and abuses) of academic freedom here, and the video of her lecture is here (though I cannot get the link to work for me, unfortunately).