Is tenure necessary to protect academic freedom?

American Behavioral Scientist

Volumn , Issue 5, 1998, Pages 638-651

  Chemerinsky, Erwin ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032220702     PISSN: 00027642     EISSN: None     Source Type: Journal    
DOI: 10.1177/0002764298041005005     Document Type: Review

References (45)

1. Dennis Kelly, "New University Becomes Setting for Tenure Debate," USA Today, 17 July 1996.
2. David Fischer, "Taking on Tenure: A Job for Life? More Schools Are Just Saying No," U.S. News & World Report, 3 March 1997, 60.
3. Id. at 62.
4. Jon Sanders, "Debate over College Tenure Dividing America, the Public, and the Professorate," Greensboro News & Record, 8 February 1997, F-6.
5. The suit is pending in Los Angeles County Superior Court as of May 1997.
6. Fischer, supra note 2, at 62.
7. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion).
8. Procunier v. Martinez, 416 U.S. 396, 427 (1974).
9. Edwin C. Baker, "Scope of the First Amendment Freedom of Speech," UCLA Law Review 25 (1978): 994.
10. For an excellent exploration of the meaning of academic freedom, see J. Peter Byrne, "Academic Freedom: A Special Concern of the First Amendment," Yale Law Journal 99 (1989): 251.
11. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
12. An important question is what types of adverse employment actions, short of dismissal, constitute a violation of tenure. For example, cutting a person's salary by 90 percent surely has the same effect as firing the individual. Protecting the existence of a person's job means little if the person could be effectively fired by eliminating his or her salary. The difficult question, and one beyond the scope of this article, is the point at which an adverse employment action is inconsistent with tenure. In evaluating the importance of tenure for academic freedom, this article focuses primarily on dismissals from employment. Obviously, if alternatives to tenure are adequate in providing protection from termination, they are likely to be sufficient as to less extreme adverse employment actions.
13. Reprinted in "Freedom and Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of Principles," Law and Contemporary Problems 53 (1990): 407, Appendix B; see also Walter P. Metzger, "The 1940 Statement of Principles on Academic Freedom and Tenure," Law and Contemporary Problems 53 (1990): 3.
14. Reprinted in "Freedom and Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of Principles," Law and Contemporary Problems 53 (1990): 407, Appendix B; see also Walter P. Metzger, "The 1940 Statement of Principles on Academic Freedom and Tenure," Law and Contemporary Problems 53 (1990): 3.
15. For an excellent discussion of the relationship of tenure to academic freedom, see Ralph S. Brown and Jordan E. Kurland, "Academic Tenure and Academic Freedom," Law and Contemporary Problems 53 (1990): 325.
16. Id. at 329.
17. These are summarized in Richard H. Hiers, "New Restrictions on Academic Free Speech: Jeffries v. Haleston," Journal of College and University Law 22 (1995): 227-249; see also text accompanying notes 18-26, infra.
18. This approach is described in J. Peter Byrne, "Academic Freedom Without Tenure?" American Association for Higher Education, Working Paper Series, Inquiry No. 5 (1997).
19. 391 U.S. 563 (1968). See also Perry v. Sinderman, 408 U.S. 593, 597 (1973) (holding that the First Amendment limits the ability of the government to fire or discipline employees because of their speech activities).
20. Id. at 568.
21. Id. at 574.
22. 429 U.S. 274 (1977).
23. Id. at 287.
24. Id. This is the same approach the Court uses with regard to proof of discriminatory intent under the Fourteenth Amendment. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977).
25. 461 U.S. 138 (1983).
26. Id. at 143.
27. Id. at 147-48.
28. 439 U.S. 410 (1979).
29. Id. at 415.
30. 483 U.S. 378 (1987).
31. Id. at 386-87.
32. Id. at 388.
33. 114 S.Ct. 1878 (1994).
34. Id. at 1893 (Scalia, J., concurring in the judgment).
35. Id. at 1898 (Stevens, J., dissenting).
36. See, for example, Connick v. Meyers, 461 U.S. 138 (1983), discussed above at text accompanying notes 24-26.
37. Byrne, "Academic Freedom Without Tenure?"
38. Id. at 13.
39. Id. at 4.
40. Id. at 6.
41. Id. at 7.
42. Id. at 8.
43. Id. at 11. Indeed, Byrne notes that "it is not surprising that most alternatives to tenure embrace long-term contracts." Id.
44. Id. at 14.
45. Id. at 15.