The Statutes of a university constitute its basic law. For example, when the Charter of Elizabeth, dated 3 March 1592, founded Trinity College Dublin as the mother of a University, it afforded the College the power to adopt and amend Statutes to regulate its internal affairs. In the restatement of TCD’s Statutes which come into force today, the Preamble sets out some values and aspirations to inform and underpin their interpretation and application. Among those values, the College

Affirms its rights and responsibilities to preserve and promote academic freedom, tenure, and freedom of expression, [and]

Recognises the corresponding commitment of its members to pursue with integrity the highest standards in teaching and learning, and in research and scholarship, …

I have already looked at the principle of academic freedom in Irish law in an earlier post on this blog; in this post I want to look at the concomitant principle of academic tenure, using the relevant provisions of TCD’s Statutes as a guide; and in a future post, I will look at the extent to which it is currently protected as a matter of Irish law.

Broadly speaking, academic tenure is the right of a full-time academic not to be arbitrarily dismissed. It is one of the means by which the principle of academic freedom is secured. Intellectual autonomy and academic freedom are central to academic research and scholarship, and the protections afforded by academic tenure allow academics to investigate unfashionable, controversial, or distasteful topics or dissent from received wisdom, and to teach and pubish their honest conculsions, without fear of external pressures (for example, from university donors, vociferous critics, or government) or internal censure. In one famous example, critics of the 19th century American progressive leader Richard Ely accused him of socialism and sought to have him removed as an economics professor at the University of Wisconsin-Madison. The attempt failed, and a plaque on the campus proclaims:

Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.

The protections afforded by tenure and academic freedom are necessary for any university committed to the pursuit of knowledge in a democratic society. All of this means, for example, that I cannot be dismissed if my teaching or scholarship is controversial. Thus, if my academic work challenges your conception relating, say, to freedom of expression, then your proper response is to make the contrary academic arguments, and not to seek to censor me or have me fired. The right not to be arbitrarily dismissed if my scholarship is controversial re-inforces my academic freedom to pursue that scholarship. More generally, it allows academic experts to engage in important public debate and to speak truth to power, without fear of retaliation: think, for example, of the many academic economists who have criticised government financial policy of late, or the many academic historians and archaeologists who have criticised public infrastructural policy.

For these kinds of reasons, the Statutes of Trinity College Dublin expressly protect tenure in the following terms:

1. … to preserve and promote the traditional principles of academic freedom and to provide security against arbitrary dismissal, the principle of tenure guarantees that the employment of permanent, full-time members of the academic staff shall not be terminated, except
   (a) in the case of a non-continuation of a contract during the course of or at the end of a period of probation, if any,
   (b) by resignation or retirement,
   (c) through discharge of the contract by operation of law, or
   (d) pursuant to the procedures set out in the Division on Conduct.
2. Board may, in a Schedule, apply the principle of tenure to other categories of academic staff, on terms consistent with their contracts of employment.

Of course, this is not an absolute protection. As the Preamble to TCD’s Statutes makes clear, academic freedom and tenure carry with them a corresponding commitment on the part of academics to pursue their work with integrity. Moreover, as the detailed provision immediately above makes clear, tenure provides security against arbitrary dismissal, but does not preclude dismissal for legitimate disciplinary reasons pursuant to the disciplinary procedures set out in the Statutes. Furthermore, tenure only protects academics in respect of matters within their contracts of academic employment. Nor is it available willy-nilly: universities have clear criteria for the appointment to a position carrying tenure.

Critics argue that it can shield malingering or incompetent faculty and reduce intellectual diversity; that it is a financially unsustainable bad deal for universities; and that it is intellectually indefensible in its own terms – in particular, its aims can best be achieved by a much narrower rule in academic contracts of employment barring dismissal for viewpoint-related reasons. Moreover – and paradoxically – where it typically comes late in an academic career structure, it can hamstring younger academics anxious not to rock the boat before they attain the holy grail of tenure. As Erin O’Connor puts it on one of my favourite blogs, Critical Mass:

Increasingly, tenure is revealed to be (to have become) an unsustainable system of privilege whose time has passed. When the AAUP and the AFT and others demand the restoration of tenure, they reveal themselves as impractical, anachronistic dinosaurs. Tenure as we have known it is done. There’s no going back. And that is not a bad thing. … [The alternative is to create] enough job security to enable intellectuals to comfortably take on the long-term teaching and research projects that yield great value for all of us, but can’t be completed, or even adequately tracked, on a year-to-year basis. We’re also talking about not having so much job security that accountability, incentives, and flexibility go out the window. …

Against criticisms of this sort, there are two Irish blogs devoted to the defence of tenure. On both sides of the argument, there is much overblown rhetoric. When it is stripped away, it becomes clear that many criticisms are misplaced, since they typically denounce a straw man, overstate the financial costs, or propose inadequate alternatives. Take the straw man; the criticisms usually assume that tenure amounts to an absolute guarantee of employment until retirement age. Stated in such unqualified terms, it is easy to knock it down. In fact, tenure is much more limited than that: it is a protection against arbitrary dismissal, and thus functions as a guarantee of employment until retirement age if and only if academics act with integrity, observe the ethical requirements that the system demands, and fulfill the terms of their contracts of employment. It does not protect malingering or incompetent academics, or those who seek to thwart efforts to increase alternative viewpoints being taught, since – by definition – they are not acting ethically, with integrity, or performing their contractual obligations.

Furthermore, financial or economic criticisms often fail to account for the fact that the intellectual autonomy afforded by academic freedom and the job security afforded by tenure are significant employment benefits, without which universities would have to offer higher salaries to attract talented scholars. (For example, academic freedom and tenure are often cited as compensation for salaries that are typically much lower than those available in the private sector; but even in disciplines where there is no private sector, academic freedom and tenure contribute strongly to faculty retention in the face of competition from other universities). Moreover, the prospect of tenure tends to provide an incentive to junior faculty to produce scholarship of the highest quality, and aspects of an individual university’s tenure rules which paradoxically work the other way can – and should – be revised.

Nor do possible alternatives provide sufficient protection: the fact that a provision barring dismissal for political reasons can be inserted in a contract of employment does not mean that it must be in every (or indeed, in any) case; and the fact that a university does insert such a clause now as a matter of course does not mean that it cannot change policy in the future. On the other hand, setting it out in university Statutes creates a generally applicable right that is not susceptible to shifting fashions in policy.

This is not to say that the conception of tenure cannot develop into something more nuanced or flexible. But an argument for evolution and flexibility is just that; it is not an argument for abolition; and it should not be over-pressed, lest profound societal, democratic and academic benefits be unjustifiably lost.

It is important then that universities respect the principle of academic tenure, and not dilute or undercut it by an ever-increasing casualization of teaching, an over-reliance on fixed-term and unrenewed contracts, and a lack of support for those who do not (yet) have tenure. It is even more important that universities defend twin principles of tenure and academic freedom against external threats. This is why institutional commitment to these principles in a university’s statutes cannot be overstated: it demonstrates that the unversity believes that tenure and academic freedom are fundamental to its mission. For these reasons, I am delighted that TCD’s new Statutes place these principles at the heart of the values and aspirations stated in the Premable, and protect them in detail in the text itself.