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.



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