Tuesday, February 16, 2016
David M. Rabban (Texas), The Regrettable Underenforcement of Incompetence as Cause to Dismiss Tenured Faculty, 91 Ind. L.J. 39 (2015):
This essay asserts that the reluctance of universities to dismiss tenured professors for incompetence compromises the traditional and convincing justification for protecting academic freedom through tenure. This justification is most fully elaborated in the 1915 Declaration of Principles of the American Association of University Professors (AAUP). After asserting that society benefits from the academic freedom of professors to express their expert professional views without fear of dismissal, the 1915 Declaration maintained that the grant of permanent tenure following a probationary period of employment protects academic freedom. Yet the 1915 Declaration also stressed that academic freedom does not extend to expression that fails to meet professional standards. Nor, it added, does permanent tenure prevent dismissal for cause, which could include "professional incompetency" as well as misconduct. It reasoned that only fellow faculty members have the expertise to determine departures from professional standards. It, therefore, insisted that a professor is entitled to a hearing by a committee of faculty peers before being dismissed and that professors have an obligation to serve on these committees.
This essay assesses the concerns that explain the overwhelming reluctance of university administrators to bring charges against clearly incompetent tenured faculty and offers suggestions to minimize them. It concludes that administrators should bring charges in appropriately extreme circumstances and should give substantial deference to the decisions of the faculty hearing committee. Doing so would uphold the principle of academic freedom, based on professional competence as determined by peer review, that is at the heart of the 1915 Declaration and that is still convincing today.