Written by Deborah Post
The push to deregulate tenure is justified by its advocates in several ways. In a prior post, I discussed one strategy the trivializing of faculty opposition which is characterized as “interest group politics” focused on “terms of employment.” The role of faculty as managers of law schools is erased, usurped by decanal assertion of management expertise.
The more powerful argument, at least where the lay public and a good portion of the legal practitioners are concerned, is the allegation that tenure prevents a dean and a school from removing faculty who are unproductive to make a place for new, young, industrious, creative faculty. The spectre of a doddering faculty member who comes to school only to teach, riffling through pages as old as he or she, is powerful. In its worst form, it suggests that law professors are the worst form of slackers, earning salaries completely disproportionate to the value they deliver to the law schools.
Not only is this caricature unfair and misleading, but it is inaccurate to say that tenure means unproductive faculty must be retained and that tenure keeps schools from hiring new, young faculty.
What is overlooked in the discussion of tenure is the process of self regulation that exists in most law schools. Deans have many tools to persuade an under-performing faculty member to improve. And many law schools now have a formal process of post-tenure review. If reform is needed, a less extreme and more suitable response is simply to take the post-tenure review process seriously. Tenure is not “permanent employment” because a faculty member can be fired “for cause.” The tenure standards provide a benchmark for judging the productivity of faculty. The faculty member who does not show up for faculty meetings, who feigns incompetence in order to avoid committee assignments, who writes nothing, mentors no one, and shows up simply to teach classes is violating the terms of his or her employment. This is cause for termination
Post-tenure review is challenging because the tenure standards are often geared to entry level employees, not those who have assumed the responsibilities of senior faculty. Most law schools require faculty members to be productive in three areas: service to the school and the wider legal community, production of scholarship, and effective classroom teaching. I am not sure about the derivation of the phrase “dead wood” but the complaints emphasize deficiencies in scholarship and teaching with little or no attention paid to the role faculty play in management. The initial tenure decision places a high value on scholarship and teaching and much less emphasis on community service, including service to the institution, but community service is something that becomes more important over the arc of a career.
Older may not be wiser but older is generally more experienced. Senior faculty have a depth of knowledge about their institution; their presence is a source of continuity and stability over time. As a general rule, it is the more senior faculty who chair committees – appointments, admissions, curriculum, colloquia, academic support and/or academic standards for students. They supervise students on the law reviews and moot court, act as advisors to the various student groups on campus. This is not insignificant. This is a very important part of what faculty do. The distribution of responsibility in law schools acknowledges the fact that newer faculty are preoccupied, as well they should be, with their research, writing, and with making sure that their work is well placed.
That is not to say that younger faculty do not serve on important committees. They do. That is not to say that older faculty are unproductive as scholars. They can be very productive. As a general rule, however, the imperatives for law teachers change over time. Once you have tenure, you are more likely to write for journals that solicit your participation for symposia and less likely to worry about sending out unsolicited work to top tier law reviews. Once you have tenure, you are more likely to be named chair of a committee.
The elimination of a requirement of tenure is being pressed to make the job of deans easier and give them more control over the operation of law schools. It is always easier to fire an at- will employee, particularly when the employee is considered a troublemaker: someone who disagrees with the administration or his/her colleagues, who acts in a way that attracts unwanted attention on controversial issues. It is more difficult, but a better and fairer business practice as well as one that acknowledges the importance of academic freedom, to document the abuses that would support termination of employment.
We must, of course, control for the abuses that arise whenever faculty engage in peer evaluations. We always have to control for the jealousies, the pettiness, and the bias that arises in peer review. The risk of injury is, in my estimation, much less when a tenured faculty is being reviewed than it is when a young faculty member comes up for tenure. The harder issue is one of compassion. What to do about the faculty member who cannot fully perform the job but who does not wish to retire? We all know and admire senior faculty whose mental acuity and continued productivity is inspirational. It is not age but job performance that is critical here. Even so, there are often cases in which a faculty member remains committed to teaching or writing but does not want to participate in faculty governance. It would be best to have a process by which salaries, office space and teaching schedules are adjusted for faculty members who wish to wind down rather than abruptly end their relationship with their institution. Institutions can and should have a plan and a process for dealing with the predictable and eminently foreseeable process of replacing faculty.