Wednesday, November 11, 2009

As the AAUP Turns...

Apparently the AAUP is launching a new campaign in recognition of the rocky judicial climate for its conception of academic freedom. I couldn't agree more. In fact, I agree so strongly that I wonder if it has thought through its position completely.

As regular readers know, I've argued for some time that the tenure system is unsustainable and even unethical. I've proposed as an alternative a system of long-term renewable contracts with academic freedom stipulated in the contract language. (For the record, I envision an initial contract of three years -- consistent with current practice for most tenure-track lines -- followed by renewable five-year contracts.) That way, if academic freedom is attacked, a complainant wouldn't have to rely on an extra-constitutional and undefined legal doctrine; she could bring action as breach of contract. Academic freedom could also be stipulated in institutional policy. To the extent that employee handbooks and/or institutional bylaws are given the force of contract, the objection from 'expiration' is rendered moot. (The recent decision that non-renewal is tantamount to termination further buttresses this argument.) Contract law is well-established, so the claim wouldn't rely on the good graces of any particular justice. What might sound, at first, like a retreat would actually be a significant advance for academic freedom.

Whether you buy my interpretation of tenure or not, it seems clear that outside of the elite institutions, tenure is going the way of the typewriter. If the only alternative to tenure is temp gigs, then academic freedom becomes de facto the exclusive province of the elite. But if tenure can be replaced with a more sustainable system featuring long-term contracts and academic freedom, then we can keep the best elements of it without chaining ourselves to a dying system. And the accountability built in to a renewable-contract system would go a long way towards defusing the cheap political shots to which higher ed is now routinely subject.

What struck me in the AAUP announcement is that it implicitly acknowledges the core of my argument. By pushing for discrete policy language on academic freedom specifically, even the AAUP is implicitly admitting that it's simply not plausible anymore to argue that tenure is the sine qua non of academic freedom. And once you make that move, the strongest argument against a contract system collapses.

To be clear, I'm not saying that the AAUP would agree with my interpretation of its initiative. It almost certainly wouldn't. But the logic of the new initiative leads in this direction, and I'd argue that that's a good thing. We could put academic freedom on much more solid legal ground -- if the current legal ground were solid, the current initiative would make no sense -- and dispense with no-win arguments with the public. I'd guess that the AAUP would respond that this new initiative is a 'second-best' position, but the fact that it needs one proves the point. The link between tenure and academic freedom is contingent at best. And we could put academic freedom on a much stronger legal foundation without trying to turn back the tide of history.

Of course, there's a larger issue of the proper definition of academic freedom, but that's for another day. For now, I'm simply arguing that it's better protected by relying on a well-established body of law than by relying on enlightened justices.

(Anticipating the flaming: "Aha! So you're anti-faculty!" No. I just find it implausible that the strongest protection for academic freedom is to be found in a withering system with tenuous legal underpinnings. "Aha! You just want to get everyone fired!" No -- if I wanted that, I'd argue for employment-at-will, such as Proprietary U had. Alternately, I'd embrace tenure with my words, while quietly adjuncting-out openings by attrition, just like, well, most of American higher ed. The goal here instead is sustainability.)

For now, I congratulate the AAUP on belatedly, and perhaps accidentally, recognizing that contract law is a much stronger foundation for academic freedom than some extra-constitutional notion that it thinks inheres in tenure. I couldn't agree more.