Wednesday, March 18, 2009

 

Grandfathering

The goings-on in Kentucky caught my eye, which shouldn't surprise longtime readers. In a nutshell, the Board of Regents of the Kentucky Community and Technical College System voted to eliminate the tenure track for full-time faculty hired from this point forward, instead offering them one-year or two-year contracts.

Though I'm hardly a fan of tenure, for the record, I'm not impressed. In my view, the Board erred in two fundamental ways. The first way was in the brevity of the contracts offered. As I've written before, a thoughtful and sustainable alternative to the tenure system should be renewable multiyear contracts with academic freedom stipulated in both the contract language and college policy. My preferred version has an initial contract for three years, followed by five year contracts, though the specifics are certainly not cast in stone. But single-year contracts are needlessly brief, lending themselves to one extreme or the other: either capricious firings, or no firings at all. Either is bad. If you've renewed someone ten times, then don't renew for the eleventh, there's a pretty strong prima facie case that you've been arbitrary. At that point, absent serious misconduct, they might as well have tenure. (The IHE article mentions that the Virgina system is officially without tenure, but has adopted de facto tenure after six annual renewals, so this isn't an abstract point.) If that same span of years only involves two or three renewals, the chance of considered judgment coming into play is much higher.

But that's easy enough to fix. All they have to do is rethink the contracts they offer, extend the terms, and the problem is solved. The more basic error is grandfathering.

Grandfathering establishes two tiers of faculty, depending on initial hire date. Two-tier labor systems are relatively common when an industry is in decline. They're a way of splitting the difference between external necessity and internal politics. Basically, you buy off the opposition of the old so you can exploit the hell out of the young. (Put differently, you exploit the hell out of the young so you can afford to buy off the old.) In various forms – the adjunct trend, increased tenure requirements, ratcheted-up employee contributions to health insurance and retirement accounts – this has been the MO of higher ed in America for the last thirty years. Everybody at the table agrees to screw over the folks who aren't yet at the table. This satisfies everybody at the table, but it does so at the cost of long-term sustainability and intergenerational fairness. Rather than solving the problem, it postpones it with interest.

The Kentucky system is looking down the barrel of several decades in which some faculty have tenure, and some full-timers never will. There is simply no way for that not to result in high drama. The impact on shared governance alone is likely to be devastating.

In the short term, grandfathering was probably a response to court rulings that have interpreted tenure as ownership of a job. If tenure is truly a property right, then being deprived of it is theft. I don't buy the 'property' theory of tenure, since it can't be sold, or leased, or traded, or even enforced if the college goes under, but my opinion is neither here nor there. At least with grandfathering, the college could make the argument that no existing property right has been violated. And since the possibility of future tenure is just that – a possibility – foreclosing it does not involve taking something away from anyone.

If the Board really wants to do away with tenure over time, it could simply construe tenure – correctly, in my view – as an employee benefit, a form of compensation. Then it could simply not give raises to anyone with tenure, and condition annual raises on forgoing tenure. Eventually, inflation would work its magic, and the problem would fade away. From what I understand, Kentucky doesn't enforce labor laws in any meaningful way, so the threat of retaliatory unionization is pretty low.

It's almost certainly true that doing away with tenure won't result in immediate short-term savings. If anything, it might actually cost a little in the short run, if prospective hires demand higher salaries to compensate for increased risk. (In the evergreen disciplines, I suspect that most prospective hires won't have the market power to make those threats stick, but it might happen in some niche programs.) But over the long term, a renewable-contract system at least allows the possibility of adjusting staffing levels to meet enrollment fluctuations, which a tenure system essentially doesn't. (Yes, you can close an entire program, but you can't shrink one without killing it, except by attrition.) What the defenders of tenure typically miss is that holding on to undead programs deprives living programs of resources. When you actually have the option of redirecting faculty lines from dying programs to growing ones, then you can actually hire to meet demand, instead of just adding ever more adjuncts. The defenders of tenure typically construe tenure as the alternative to the adjunct trend; they fail to understand that it's actually a root cause. The only way to afford overpaying some (relative to demand for their services) is to underpay others. And the siren call of tenure is part of what keeps replenishing the reserve army of adjuncts, who keep coming back hoping for their big break. It's a sick dialectic, and it needs to be shattered for everyone's sake.

All of that said, there are right and wrong ways to do this. The Kentucky system understands what it doesn't like, but doesn't seem to have given much thought to what it does like. And in this case, as in so many, a half-measure is worse than no measure at all. I'd send this one back to the drawing board. This is too important to get wrong.

Comments:
As schools move away from tenure, will we see more professors treated similarly to public sector employees?

By that I mean no "legal tenure," but once they've been employed for five or ten years and have some seniority they have de facto employment for life? I know deadwood faculty that can't be removed because of tenure, but I also know deadwood staff that can't be removed because of public employee protections. Having briefly worked in the federal bureaucracy, I know this is just as true in DC--it's really hard to get rid of someone, even when they're clearly not doing their job.

And don't low- and mid-level public employees (like public school instructors) have some legal protection against termination for political reasons (like those US Attorneys that the Bush Administration wanted to remove)? That wouldn't be the sort of total academic freedom that radicals insist on, but it would give wide latitude as long as the prof was doing his/her job.

Are the short, time-limited contracts an attempt by Kentucky to deliberately avoid this kind of job security? I don't know if this model would be good or bad (thoughts, anyone?), but its widespread use in the public sector makes it plausible, at least.
 
Here's a classic case of "careful what you wish for." Once you open the doors to elimination of tenure, the KCTCS's move is what the slippery slope will look like. If you've spent your entire career working in union states, it's easy to be confident that the unions will help defend academic freedom provisions in contracts. But an awful lot of states have no faculty unions and, like Kentucky, don't "enforce labor laws in any meaningful way." Will you just throw us to wolves because of an ideological opposition to tenure?

I also profoundly disagree that tenure is responsible for the two-tiered hierarchy or the explosion of adjunct labor. Universal tenure would be perfectly viable if states provided the actual costs required to run a university. Underfunding is the root cause, not tenure.
 
What Shane said, for sure. The real problem is underfunding--which Dean Dad is certainly aware of--not tenure.

Furthermore, tenure does not necessarily guarantee a job for life. A tenured CA cc teacher who is incompetent can, and should, be fired. Sure, the process is messy, time-consuming, and expensive, but it should be. Convicting a dangerous felon is also messy, time-consuming, and expensive, but I don't think there are many folks reading this who would want to eliminate our criminal justice system because it's costly and sometimes cumbersome. Even a truely bad teacher deserves the right of due process, no?

In my 30+ years of teaching, I've seen as many incompetent administrators as I've seen incompetent teachers. These administrators don't have tenure, but, just like bad teachers, they're usually retained for year after year. When a district tries to get rid of them, lawyers and lawsuits become part of the picture even though tenure for administators is not an issue.

If Dean Dad's system for rolling five-year contracts were in place, I think we'd see even more legal wrangling than we do now. You don't need to be Nostradamus to predict that nearly every time a five-year faculty contract was not renewed, a cc district would have a legal battle on its hands.

Finally, out here in California, where there's a strong tenure system, cc districts can eliminate moribund programs. The process is called RIFing--a reduction in force.

--Philip
 
So who's going to write the reviews?

I'm guessing a whole new layer of administration to administer reviews.

I'd hate to be a science educator in Kentucky!
 
Another unintended consequence of the one year (and to a lesser extent two year) contracts is that you increase the likelihood of losing good new faculty to other colleges.

I have a spouse in decent position as a lecturer at large public R1. The biggest problem with it is a one year contract. Thus he feels obligated to be on the market every single year - just in case. Lucky for the R1 (and unlucky for us), he researches in a very marginal, radical area and thus has struggled to find the perfect alternative. One year contracts force new faculty to look (at least in the beginning before the person has a feel for the safety/implied "tenure" or senority of their status). Good faculty will find something else and leave.

We've often discussed what it would take for spouse to stop looking every year. For our family, it would probably be a 3+ year contract. Even 2 years feels to short to not be on the market when there are so few jobs that "fit." Although now that he has been around for nearly 5+ years and there are a few lecturers with less seniority in the department, spouse is becoming increasingly more selective in the search.
 
"adjusting staffing levels to meet enrollment fluctuations" = firing people.

"redirecting faculty lines from dying programs to growing ones" = firing people.

Fine to discuss tenure and its discontents, but let's dispense with the euphemisms, shall we? If what you want is the ability to fire an instructor ("faculty" status disappears, in my opinion, with the loss of tenure) or shut down a department based on, oh, some administrator's reading of "the market," then just say that. None of this "we're not firing you, we've just realigned your position with the market" crap.
 
If a school is underfunded because it has to funnel money to bloated and over-facultied departments, then tenure is still the problem.
 
Hey DD, we had this conversation over email -- you know as well as I do that the adjunct issue is a supply-side problem, not a demand-side one. It's really not fair to link it to colleges' lack of flexibility in certain areas.

I've worked on this a lot, and I understand why a person at a CC might have a wildly different view of tenure than a person at an R1. I'm willing to have that conversation. But I've also seen faculty conflicts where the only thing protecting the faculty member doing the right thing was tenure. It's a sword that does cut both ways.
 
It appears new hires will get the short end of this deal. I doubt salaries will be increased with the removal of working for tenure. Part of tenure is a slightly lower salary for job safety. Also, how about workload hours. Having worked at a prop. u with no union the contracts will be very biased.
 
Thank you yet again, DD, for giving me another reason to be glad that I left academia.
 
Dean Dad: "I don't buy the 'property' theory of tenure, since it can't be sold, or leased, or traded,"

Any first-year law student knows this is a silly argument. You can't sell, lease, or trade the Valium you just filled that prescription for at the drug store - but it's still your "property" in the sense that the government can't take it away. You can't sell, lease, or trade the associate degree you earn at dean dad's CC, but that's your "property" too, in the same way.

The question is, what should be the incidents of this particular kind of property?
 
A few observations:

Kentucky hardly lacks flexibility. According to the document they approved, their "tenured" faculty hold tenure in the system, not at a particular school. That means they can (if they had the need) move a professor of mathematics or welding from one end of Kentucky to the other if they need to replace a retiree at one place and lack demand at another.

Dean Dad assumes their system would give higher pay (they can't give greater security) to a professor in a high demand area with low supply, but that is rarely the case at a CC.

There is no mention of "rolling" contracts in the document. They also don't exclude the possibility of doing it, but I can already envision incompetent managers giving someone a 2 year contract and waiting 2 years to renew it - leading the competent prof to think it is time to look for a new job. Now imagine having a 4 year contract that is renewed every 4 years. Imagine the angst waiting for a letter at the 3.5 year point after 12 years at the college! Who would buy a house and commit to Hick Hollow CC under those conditions?
 
You go, you ageist pigs!!!
 
DD says: "If the Board really wants to do away with tenure over time, it could simply construe tenure – correctly, in my view – as an employee benefit, a form of compensation. Then it could simply not give raises to anyone with tenure, and condition annual raises on forgoing tenure. Eventually, inflation would work its magic, and the problem would fade away"......

I respect DD's views on several issues, but the paragraph above just befuddles me. He's proposing that tenure be offered as a proverbial 'carrot', and the 'stick' would be employees having to forego salary raises for the rest of their careers - wow, conservatives should have a field day with such a suggestion! What's next? Offering tenure only if employees 'volunteer' to forego health insurance, pension....etc etc?? Is this not a remarkably dangerous line of logic to follow? Sure, one can can have compelling reasons to oppose tenure, but does that legitimize proposing measures that stamp out their opponents' (ie: tenure-seekers') right to a reasonable sustenance?....wanting salaries to keep up with inflation is not really asking for the moon, now is it? Or maybe it is - somebody forgot to send me the memo.
 
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