Tenure

May 15th, 2013 / By Deborah J. Merritt

In my comments to the ABA Task Force, I endorse an accreditation standard that embraces academic freedom but does not require tenure. Brian Tamanaha made the same proposal in his book Failing Law Schools, but most academics vigorously defend an accreditation standard requiring tenure. Why do I favor the looser standard? Here are my top five reasons:

1. Tenure is not the same as academic freedom.

Tenure is an excellent way to assure academic freedom; in fact, it may be the best method of attaining that end. But tenure is a means to an end, rather than an end in itself. Tenure is like the absolute immunity that prosecutors enjoy when acting in their role as advocates. Just as absolute immunity promotes prosecutorial independence, tenure promotes academic freedom.

The distinction between means and ends is important, because means carry costs as well as benefits. Absolute immunity is a great way to protect prosecutorial independence, but a number of scholars and judges have questioned the wisdom of that immunity. Given the costs of absolute immunity (which include dishonest, retaliatory prosectuors), and the availability of other means to protect honest prosecutors (such as qualified immunity and insurance schemes), is absolute immunity the only acceptable means for protecting prosecutorial independence?

We need to ask the same question about tenure. Accreditation standards set a floor. Tenure is an excellent way of securing academic freedom, but is it the only acceptable means to achieve that end?

The answer to that question, I think, is clearly “no.” Long-term contracts, review processes, and other mechanisms can shield academic freedom. Those means may not be as effective as tenure, but they also lack the costs of tenure. An accreditation standard should require adoption of policies and procedures to protect academic freedom, but we need not mandate a single means to that end.

2. Lawyers take unpopular positions, without benefit of tenure.

In law school, we tell students that some of them will represent unpopular clients. The client may have murdered a child, contaminated seas with spilled oil, or distributed Nazi propaganda. All of these clients, we declare, have a right to legal counsel. We urge our students to represent those clients, regardless of the economic or social costs to themselves.

We also teach students that lawyers have ethical obligations to the court, the law, and third parties; those duties often require them to give clients advice that the clients don’t want to hear. Again, the lawyer must adhere to those ethical obligations, even at the risk of losing a valuable client.

For practicing lawyers, these costs are real. Suppose an associate agrees to pro bono representation of a human trafficking victim who is attempting to expunge a series of prostitution convictions and start a new life. If a paying business client objects to the former prostitute’s presence in the firm’s reception area, should the associate drop the case? What if a conservative partner suggests that the associate would be “prudent” to refer the prostitute to a “less business oriented firm”?

Or suppose that a junior partner attracts a promising start-up company as a client. The new company’s legal work poses no conflict with existing clients, but an existing client perceives the start-up as a business competitor. If the managing partner asks the junior partner to send the start-up to another firm, should the junior partner comply?

Finally, consider the lawyer defending her firm’s major client in high-stakes civil litigation. The client’s CEO tells the lawyer he “has things under control” because a vice president will lie about a key point at trial. Does the lawyer tell the client that, contrary to what he may have seen on television, lawyers are not allowed to call perjuring witnesses to the stand? Clients can, and do, fire their lawyers for this type of advice.

Many practicing lawyers, in other words, face challenging situations in which they must weigh truth, ethics, or client interest against their own economic and social interests. Given the hardiness that our profession demands from practitioners, why should our academics receive extraordinary levels of protection for their freedom of expression? Or, to phrase the question from the perspective of accreditation standards, why should we require law schools to provide that extraordinary protection as the only possible means of securing academic freedom? We call on other lawyers to speak the truth to their clients, partners, and supervisors, at considerable risk to their own livelihood.

3. Tenure confers unwarranted economic value on professors.

Universities adopt tenure as a way of promoting academic freedom, but the protection also gives professors economic security beyond that enjoyed by their peers in other occupations. Decades ago, when businesses showed more loyalty to their workers, and when law firms rarely dismissed partners, tenured professors held an economic position analogous to that of senior corporate managers or law firm partners. Short of gross malfeasance or the organization’s bankruptcy, all of those workers could count on secure employment until retirement.

Today the picture is quite different. Very few organizations offer their workers the type of economic security that tenured professors enjoy. Some of my peers at law firms or corporations lost their jobs after the Great Recession. They were at least as talented as me, brought great value to their organizations, and demonstrated integrity in their dealings with clients and others. But when times got tough, they were laid off. Professors are protected unless their schools close; even then, the university may have to find them a roost in another department.

As other industries have become more volatile, the economic value of tenure has grown–completely apart from its connection to academic freedom. I value my tenure, not only because it grants extraordinary protection for my academic freedom, but because it gives me a virtually impenetrable shield against economic downturns. Universities don’t grant tenure for the latter reason; the end is academic freedom rather than job security during bad economic times. But I get the latter along with the former.

Some tenure defenders claim that tenure purposely confers this economic benefit. They argue that professors are underpaid compared to other professionals, and that universities use tenure to make up that economic difference. Under this argument, it is cheaper for universities to grant tenure than to pay professors the amounts they would demand absent tenure.

I doubt that this argument is true, at least for law professors. Law faculty salaries have climbed over the last generation, at the same time that the economic value of tenure has increased. These increases don’t seem related to a diminishing supply of potential law professors; if anything, the supply has grown significantly. The lifestyle attractions of law teaching have also grown compared to high-stakes law practice, making the academy even more attractive. Law professors have used their gatekeeping power to raise salaries at the same time that other benefits have risen, producing a financial windfall.

For the purpose of setting accreditation standards, however, we don’t need to know whether tenure substitutes for higher salaries; we should simply leave that choice to law schools. If law schools find it cheaper to grant tenure than to pay higher salaries, they may follow that path. If they find it cheaper to grant higher salaries in place of tenure, or find that high compensation is not necessary, they should have that choice. The point here is that tenure confers a substantial economic advantage that is not part of its avowed purpose. Law schools should have the choice whether to grant that advantage, along with the premium protection that tenure provides for academic freedom, or to provide other forms of economic benefit along with alternative protections for academic freedom.

4. Tenure discourages organizational innovation.

Observers frequently note the academy’s resistance to change. Why are professors, who try to push the boundaries of knowledge, so reluctant to alter the ways they teach, admit students, or perform other institutional functions? I think tenure plays a significant role. Professors run little risk of losing their jobs, whatever students, the public, or others think of their institutional norms. The lack of usual market pressures reduces incentives to change.

Consider how law schools might have responded to changes in the legal market if professors lacked tenure. When Bill Henderson and other scholars started noting structural changes in the legal job market, untenured faculties might have taken more notice. “Gee,” they might have thought, “if our graduates can’t get as many jobs, we may not get as many applicants. If that happens, the school might downsize and I could lose my job. Maybe we better look into this and do something about the situation!” Instead, tenured law faculties largely ignored the trends until this year, when the effects became too glaring to overlook.

The same is true of rising tuition and mounting student loans. In any other industry, insiders would have realized years ago that their economic model was broken and that a crash was inevitable. Worried about losing their own jobs, they would have moderated tuition or found other ways to avoid disaster. Tenured professors have little incentive to worry about these challenges. Even an industry tsunami–like the current plunge in law school applicants–will result in relatively few tenured professors losing their jobs. A few schools may close, with those professors losing their tenured positions, but most schools will lay off staff, trim other expenses, and hold off replacing retired professors. Tenure means that relatively few professors place their own livelihood at risk by ignoring market forces.

Tenure shields professors from market effects, but students and graduates aren’t as lucky. While professors pooh-poohed talk of structural changes in law practice, and ignored cracks in our economic model, law schools kept admitting students and raising tuition. If we’d faced facts earlier, would we really have raised tuition in 2009, 2010, 2011, and 2012? Would we have reduced class sizes earlier? Would we have moved more aggressively to find better ways to prepare students for available jobs? Quicker, market-based reaction could have helped our students and graduates.

5. We’ve lost the pension-plan hedge.

Until recently, pension plans gave universities a hedge against some of tenure’s worst financial effects. Many pension plans provided defined benefits that lured professors into retirement at age 65. If a university faced rocky economic times, it could sweeten the deal to tempt even earlier retirements. Some of these deals were literally too good to refuse. If working more years won’t increase your pension, and if the promised pension is close to your current salary, it makes economic sense to retire. At public universities, these deals shifted costs to state pension plans–with the calamitous effects some state plans now face. But that’s a different story. From the law school’s perspective, defined-benefit plans provided a way to move senior (and highly paid) professors off the payroll.

At the turn of the century, defined-contribution plans became popular and more professors opted for them. These plans offer very little incentive to retire. On the contrary, as long as a professor can satisfy the minimum job demands, defined-contribution plans encourage senior professors to stay in the workplace. As a University of California website explains, traditional defined-benefit plans “can be designed to encourage early retirement” and “may financially penalize workers for working additional years beyond the normal retirement age.” Defined-contribution plans, in contrast, “cannot be designed to encourage early retirement but instead rewards employees for working additional years.”

I’m part of the rising wave of potential retirees with defined-contribution plans. As I look ahead to age sixty-five, I see no reason why I would retire. By that time, I will have been a law professor for more than thirty-five years. Even if I’m burned out, fatigued by age, or suffer a partial disability, I’ll probably be able to handle a few hours of teaching a week, plus a few committee meetings and office hours. After decades of experience, those things come pretty easily to me. And with tenure protecting me against pressure to publish or volunteer for extra duties, I could spend the rest of the week gardening, playing poker, or resting up for my campus appearances. Teaching is a nine-month gig, so I could also forego the summer research grants and spend my summers traveling the world in flat-out retirement mode. I may even persuade myself that my elder wisdom compensates for any other shortcomings in teaching or research. Surely the students and younger faculty will want to know what law practice was like in 1980!

With the benefits of modern medicine, tenure, and the supportive academic lifestyle, many of us will be able to follow that game plan well into our eighties–twenty years or more after the traditional retirement age. We’ll keep earning our senior professorial salaries, most likely with at least annual inflation increases, while socking more money into our retirement accounts. Best of all, we can even use the money in those retirement accounts without actually retiring! Conversely, if bad investments or a poor market shrink those accounts, we’ll have even more reason to keep working.

Some of these senior professors, of course, will continue making valuable contributions to both teaching and research. Sixty-five, seventy, and eighty are still young for many people. The professors doing that today, however, often are drawing their pay from pension plans rather than the law school’s budget. The big switch, which will start over the next few years at many schools, is that these highly regarded, highly paid professors will continue drawing their salaries from school budgets long after age sixty-five. Whether they contribute mightily or meekly to the school’s mission, they will be very, very expensive.

Universities have started talking internally about the financial threat of defined-contribution retirement accounts, but I haven’t heard of solutions. The costs of tenured faculty are going to rise significantly–beyond what schools have been accustomed to paying–just at a time when tuition revenue will start falling. Tenure combined with defined-contribution retirement plans will create an unprecedented financial crisis in the academy–and that’s saying something given the extent of the current crisis.

Once again, there’s no reason for accreditation standards to force this crisis on law schools. If a law school believes that the benefits of tenure outweigh this financial threat, it is welcome to grant tenure. But if a school wants to protect academic freedom in less financially ominous ways, it should have the power to do so.

Conclusion

Tenure has other costs, which I’ve omitted here. It protects lazy professors, incompetent ones, and even the truly malicious. In theory, a university can de-tenure professors in the last two categories, but the process is difficult. Other means of protecting academic freedom would give universities greater latitude to weed out professors who harm the academic mission. The absence of tenure probably would deter some of that harmful behavior from occurring.

The absence of tenure, on the other hand, might well expose some professors to job loss for expressing unpopular views. Tenure is the premium plan for academic freedom; other plans won’t work quite as well. But other plans also cost less. Law schools–and their students–deserve the opportunity to balance these costs and benefits, choosing the plan they prefer to for protection of academic freedom. Potential professors will also be free to choose whether the proposed benefits suit their needs.

Faculty, Rules, Tenure