Emory Law Insights

Chapter 12: Renegade

This chapter tackles the first – and by far the most influential – of three common assumptions regarding tenure’s effects on faculty behavior: that tenure encourages faculty to be iconoclastic in their teaching, scholarship, and extracurricular activities. In other words, in the eyes of supporters and critics alike, tenure protects academic freedom.

For a while now, it’s occurred to me that nonacademics, as well as many pre-tenure faculty, must imagine that getting tenure is like being handed the keys to a particularly snazzy sports car on the morning of your sixteenth birthday. What a coup! You feel excited and empowered. You’re ready to take on the world in a way that simply wasn’t possible when you were a lowly pedestrian. If everything unfolds as it should, you and your new car will engage in all kinds of adventures to the consternation and anxious discomfort of your generous, trusting parents. It’s a milestone that is simultaneously liberating (to you) and a bit dangerous (to everyone around you).

As many tenure-stream faculty ultimately discover, getting tenure is more like getting the keys to a new house. Of course you want the house. Of course. The house provides autonomy and security – not just for you, but for your family, too. You understand all too well that, in today’s cutthroat housing market, it took a combination of good luck and great privilege to reach this moment. You are profoundly relieved. You are proud. You did it.

But you’re also exhausted by the time closing comes around, and you’re frustrated by all the hoops you had to jump through as well as the compromises you found yourself making. You’re worried about what lies ahead because, while there were dozens of people eager to help you on your path toward homeownership, there’s almost no one standing around now telling you how to be a homeowner. Most of all, you thought that getting the keys represented the end of your journey and of your battles. You didn’t expect to find a rotting tree next to your new porch or a $5,000 smartphone-controlled oven (seriously?) that goes on the fritz when, a few weeks into your new and unexpectedly sleep-deprived status, you wearily toss in a frozen pizza.

Supporters and critics alike thus misunderstand the relationship between tenure and autonomy. There’s no question that tenure provides the faculty who receive it with a level of security that’s unavailable to the millions of at-will employees across this country, employees who can be subjected to instantaneous or arbitrary dismissal. But both sides of the debate overestimate the degree to which tenured faculty are waiting to zoom off, unsupervised and uninhibited, on adventures that were previously off-limits. They also underestimate the exhaustion, extra labor, and lack of direction waiting on the other side. On both sides of the debate, the rhetoric is overblown.

Before we move on, a few Yes, buts… are in order.

First, the kind of autonomy I’ll discuss in the rest of this chapter is individual academic freedom. According to the German tradition that inspired many of the AAUP’s earliest leaders, “academic freedom embraced three interrelated principles: Lehrfreiheit, Lernfreiheit, and Freiheit der Wissenschaft.” Only one of these concepts – Lehrfreiheit – refers to the freedom of an individual instructor. And even though this word literally translates as “teaching freedom,” the influential historian of tenure whom we first met in Chapter 5, Walter Metzger, notes that Lehrfreiheit encompasses both the scholarly and pedagogical autonomy now widely associated with individual academic freedom. Both the 1940 Statement and an earlier document, the 1915 Declaration of Principles on Academic Freedom and Academic Tenure, define academic freedom in individualistic terms: as the “freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.”

But there’s also institutional academic freedom – Freiheit der Wissenschaft – and it too elicits strong feelings in the contemporary United States. Metzger argues that this “somewhat cryptic” German phrase, which literally means freedom of science, is more properly understood as referring to the freedom of “[a]cademic self-government” and the need for “broad institutional powers.” Without these, nineteenth-century German theorists believed that the “university… would be dangerously vulnerable to government or religious censorship.” Today, American conversations about institutional academic freedom most often concern curriculum development. That’s understandable since politicians and donors are both pushing for universities to teach “good” ideas (for example, via the centers of civic thought being established at various public institutions) and to ban “bad” ones (via the many legislative or executive measures targeting Critical Race Theory and other “divisive concepts”).

My focus on individual over institutional academic freedom tracks popular commentary, which tends to emphasize tenure’s transformative effects on persons. But that’s not to say that institutional freedom gets totally ignored or that commentators overlook the collective consequences of having or lacking individual freedom. Far from it. After all, arguments that academic freedom helps sustain democracy or that academic freedom fuels intellectual indoctrination are, fundamentally, arguments about how tenure affects society. These are arguments about how job security for some people affects the lives of many people. Nevertheless, the individual professor and tenure’s effects on her incentives remain at the center of the debate. Most people are for or against tenure depending on whether they think it produces renegades or heroes.

A second caveat is that my focus on individual incentives imports with it a theory of human nature according to which people are deeply, almost preternaturally rational. How else do you account for the idea that a person who’s played it safe through at least a decade of tertiary education and another five to seven years of pre-tenure probation and regular evaluation will, consciously or unconsciously, let loose upon receipt of a simple piece of paper? But supporters and critics alike implicitly make this claim. In doing so, both sides lean on the idea that human beings – and professors specifically – are “rational actors” who carefully and accurately engage in cost-benefit analysis. It’s an idea that’s most associated with classical economics, and one that I explain further (as well as partly critique) in the context of Chapter 14’s focus on faculty productivity. But it’s also central to the assumptions at issue in this chapter and the next one, and it’s no less problematic in either case.

Supporters of tenure, as I’ve already noted, argue that tenure is valuable because it allows faculty to be iconoclastic in their teaching, scholarship, and extracurricular activities. Let’s acknowledge the proof problem inherent in this claim: saying that X is a condition of Y often means that Y wouldn’t exist without X. If we didn’t have tenure, the argument goes, we wouldn’t have academic freedom. By implication, if you like academic freedom, you need to support tenure. (You might also say – and many supporters of tenure do – that X is a necessary yet insufficient condition for Y, but this more nuanced argument is less common, maybe because nuance is less rhetorically impactful.)

Why does this claim present a proof problem? Because we have no easy way to examine, in the real world, whether the availability of tenure has promoted scholarly or pedagogical freedom.

Imagine the circumstances required to empirically draw this conclusion. If you did a controlled experiment, you’d need two groups of faculty who are equal in every respect – intelligence, social capital, credentials, job security, professional autonomy, professional resources, and disciplinary prestige – except that one group has tenure and the other doesn’t. This may be obvious, but: two such groups almost certainly don’t exist. In most fields, having tenure makes certain things possible (like more scholarly production) that in turn makes other things possible (like research grants or prizes) and so on until the tenured and nontenured groups are meaningfully unlike one another. There just isn’t an “all else being equal” way to think about these two types of professors at the same moment in time.

Perhaps, instead, you could think across moments in time via the kind of before-and-after demonstration commonly used by advertising campaigns. In this case, you would need a university that once had a policy of granting tenure but then abolished it (or vice versa), a way to eliminate other institutional or environmental variables besides tenure from your consideration (say, federal funding freezes that depress research productivity), and an idea of what professors at that university wanted to research or teach versus what they ultimately did. There are institutions that have flip-flopped between tenuring and not tenuring their faculty. Chatham University in Pennsylvania, for example, practiced tenure until 2005, then abolished it for seventeen years, then reinstated tenure in 2022. Similarly, trustees of the State College of Florida at Manatee-Sarasota voted to abolish tenure in 2015, but union-led efforts eventually achieved its reinstatement in 2020. But absent a few such examples accompanied by information about faculty desires and a reasonable interpretive framework for comparing those desires with actual behavior, defenses of tenure that rest on its efficacy at protecting individual academic freedom operate at the level of theory…