Paul L. Caron

Sunday, June 11, 2017

Chaired Professor Wages Court Battle Against Tenure

WWInside Higher Ed, Case Against Tenure:

James Wetherbe, Richard Schulze Distinguished Professor at Texas Tech University’s Rawls College of Business, is the rare academic who doesn’t want tenure. He thinks so little of tenure, in fact, that he’s been waging a four-year legal battle against the notion that professors must assume it to advance their careers.

Wetherbe had little success in his first lawsuit alleging that he missed out on promotions and was otherwise retaliated against for his anti-tenure views; it was dismissed in 2014 on the grounds that the professor’s comments against tenure up until he lost out on a deanship and an honorary title weren’t substantive enough to support his claim of a First Amendment violation.

But a second lawsuit alleging continued retaliation for his speaking out against tenure may proceed to trial. The U.S. Court of Appeals for the Fifth Circuit has reinstated Wetherbe's new complaint against a dean at Texas Tech, reversing a lower court’s ruling that tenure is more of an individual working condition than a matter of public concern and therefore not protected speech. His case was bolstered by news articles about his first complaint and additional opinion pieces he’s written since 2012, including one in the Harvard Business Review (It’s Time for Tenure to Lose Tenure):

At no other time in history has the American higher education system been in greater need of radical change. The place to start: abolishing tenure.

Originally established in the late 1700s to protect academic freedom at religious schools (which are less than a fifth of the 4,703 U.S. colleges today), tenure has morphed into a guaranteed “job for life,” a benefit no longer enjoyed by any other segment of the U.S. workforce. Even the United Kingdom did away with tenure in the late 1980s when then-Prime Minister Margaret Thatcher implored the nation’s colleges to become more productive. (Tenure does exist in some form in other European universities, as well as Chinese and Indian schools.) While not all of academia’s problems can be laid at tenure’s doorstep, tenure has hamstrung colleges’ ability to fulfill their two fundamental missions of advancing knowledge and disseminating it. ...

Tenure could be replaced with contracts similar to those in the business world. Merit-worthy professors could be offered multiyear contracts that give them time to prove themselves; full professors could enjoy rolling contracts that provide reasonable amounts of job security. As in business, the contract can be bought out if the professor does not perform. Since resigning tenure 20 years ago at the University of Minnesota, I’ve been on one-year rolling contracts.

In a recent Gallup poll, nearly two-thirds of 1,081 college and university provosts said they preferred long-term contracts to tenure. This would free up resources to staff according to what the outside world needs, both in graduates and in innovative ideas.

Legal Education | Permalink


You’re assuming that Libertarianism necessarily implies anarchy. That is certainly not the case. Although many Libertarians embrace anarchy, they are a minority. Nor can you refute the economic and social advantages that Somalia has enjoyed due to the lack of a central state power misallocating economic resources. The “warlords” are of course simply those trying to seize the state apparatus of violence and compulsion...the machinery of the state. Can we assume you’d view it as an improvement if one of those warring parties was to seize control and impose “order”? Perhaps they can have such thoroughgoing central control of the economy that they might approach the utopian societies of North Korea or Venezuela.

Posted by: Somalia | Jun 14, 2017 10:16:54 AM

The Cato Institute explains how Somalia proves that libertarianism works.

Posted by: Cato on Somalia | Jun 13, 2017 7:13:06 AM

The Fleischer case ultimately suggests that tenure is not necessary to academia. Victor Fleisher was recently appointed Director of the USD Law School Tax Programs, which seems to suggest that people who do valuable research or do good work on other dimensions valued by employers can always find employers eager to hire them. Although there are some systemic problems in academia where anyone who doesn’t toe the “liberal” line of the day faces industry-wide ostracism, by and large tenure only protects those who don’t have anything of value to offer potential employers.

Posted by: Victor Fleisher | Jun 13, 2017 7:00:42 AM

The libertarian Independent Institute loves Somalia too:

Here's the thing. For all the libertarian blather about Somalia having mobile phones even without much of a government, before the government collapsed, Somalia had the same life expectancy as Ethiopia. Today, after 26 years of defacto Libertarian rule, Ethiopia is *9 years* ahead of Somalia, whose life expectancy is only 55.

Posted by: Somalia | Jun 13, 2017 5:52:35 AM

The Libertarian Mises institute sings Somalia's praises as well:

Posted by: Somalia | Jun 13, 2017 5:37:56 AM

Actually, the Cato institute (Koch-founded and funded think tank) described Somalia as a Libertarian Paradise.

Libertarians talk about "multiple protective agencies" as an ideal alternative to the state monopoly on force. Warlords is Somalia are a real world example. They've basically implemented every off-the-wall Libertarian theory imaginable.

Posted by: Somalia | Jun 13, 2017 5:34:11 AM

Anyone who thinks Somalia or Indonesia are "Libertarian" has an extraordinarily shallow understanding of Libertarianism. To make this relevant, it's worth noting that person is probably tenured, and foists similar unfounded and uninformed opinions on his/her students every day, and there's nothing that can be done to stop him/her.

Posted by: Somalia? Indonesia? | Jun 13, 2017 4:21:33 AM

Tenure doesn't mean a job for life. Tenure provides a set of due process protections (or is meant to). For cause termination is perfectly appropriate. If you're concerned about "deadwood" faculty, define "cause" as failing to publish...

Posted by: Matthew Bruckner | Jun 13, 2017 4:10:55 AM

A lot of anonymous people claiming to be tenured professors on this blog clearly aren't.

Tenure doesn't mean that professors can't be fired or disciplined for incompetence. It means they have procedural protections and cannot simply be fired at will because of the whims of an administrator or the vindictiveness of a donor.

When Victor Fleischer pointed out that carried interest enables Hedge Fund and PE managers to pay extremely low tax rates on what should rightfully be characterized as ordinary income, some very wealthy alumni and big donors of the University of Colorado were deeply offended and personally called his Dean and the President of the University to demand that he be fired.

Not because he was wrong or incompetent, but because his research was a direct threat to their after-tax income.

And as much as people on this blog may think of Vic Fleischer, there isn't a University President in the whole United States that wouldn't fire him in the blink of an eye for a $20 million dollar donation if not for tenure.

Tenure means that intellectual integrity and truth are not for sale to the highest bidder in Universities the way they are in Think Tanks and the Press.

AEI and Cato and WSJ will whore themselves out and say Global Warming is a Chinese hoax.

Universities won't, and thanks to tenure, Professors don't have to.

Posted by: Tenure | Jun 12, 2017 7:40:55 PM

The reason we need Tenure is so that researchers and teachers can't have their livelihoods destroyed for pointing out inconvenient truths, like . . .

-Mankind evolved from a common ancestor shared with other animals and were not created in 6 days
-The earth revolves around the sun and the sun is only one of many stars
-Animals have nervous systems and feel pain, which we indirectly inflict on them every time we consume meat or use leather
-Burning fossil fuels contributes to severe weather, flooding, and a host of environmental and economic problems
-The average life expectancy in Russia plummeted after Communism ended and has grown more slowly in the U.S. than in Social Democratic countries
-Busing drops test scores for white students as much as it raises them for minorities

If you think people don't lose their jobs for pointing these kinds of things out, just take a look at what the Trump administration is doing to the EPA, what Republicans in North Carolina are doing to UNC Chapel Hill, and what happens to anyone in public life who makes racially insensitive remarks.

Posted by: Tenure | Jun 12, 2017 6:55:47 PM

Long overdue. Tenure, like union membership, protects the incompetent and lazy at the expense of everyone else. I've seen too many colleagues who let their teaching and research go in the toilet once they get tenure, and there's not a thing that can be done to get them to take their responsibilities seriously.

Posted by: Tenured | Jun 12, 2017 3:24:13 PM

Why does anyone deserve a job for life with near immunity to firing? (especially all the primary school teachers with tenure!)

Put strong academic independence protections into their employment contracts; then the professors can deal with their careers like the rest of us.

Posted by: todd | Jun 12, 2017 1:46:46 PM

Somalia is even more libertarian.

Virtually no public education for any children.

And anyone who follows libertarian ideology can aspire to the same level of security and prosperity for their own country.

Posted by: Somalia is even more Libertarian | Jun 12, 2017 11:41:05 AM

Alec Rawls, you might find Indonesia more to your liking than the United States. It has among the least educated populations of any country in the world, and the government doesn't have much to do with education--they leave it to the Madrasas to train good muslims.

Posted by: Indonesia is the Libertarian Utopia | Jun 12, 2017 11:36:16 AM

Take a look at the tenured faculty who have left UNC for higher ranked institutions like Wash U, Duke, Georgia, Alabama, etc. These are all people who kept publishing after tenure.

Even obnoxious blowhards like Gene Nichol kept publishing after tenure, which is precisely why UNC is in this mess.

If he'd kept his mouth shut except to praise the Republican governor and legislature, everything would be fine.

Posted by: Tenure | Jun 12, 2017 11:32:46 AM

Most professors retire from research and publication immediately after receiving tenure.

Posted by: Hugh deBryn | Jun 12, 2017 10:17:35 AM

Tenure at state universities violates the article IV guarantee to the states that they shall have a republican form of government. As Alexander Hamilton stated at the New York debates, the first principle of republicanism is that the people shall choose who is to represent them in government. In other words the people can always "throw the bums out." Tenured professors are government bums who the people cannot throw out, and the problem goes deeper still.

State universities, just by their existence, violate the guarantee clause, which is fundamentally about maintaining the master-slave relationship between the people (master) and government (their slave). The people tell government what is the right and moral course to follow, not vice versa. The very idea of government instructors telling the people how to think straight inverts this master slave relationship. Government should have NO ROLE in education at any level beyond requiring that parents provide at least a basic level of education for their children.

We are obviously far from that, which makes tenure all the more egregious. Our universities are dominated by highly politicized far leftists who regard it as their primary mission to turn their students into far leftists. A more direct assault on the master slave relation between the people and their government is hard to imagine outside of direct usurpation.

Private schools should also reject tenure because the original justification for tenure never applied to them anyway. Tenure began in monarchial Europe as a carve-out against the plenipotential power of kings, who otherwise had full authority over all European universities. It was part of the movement to switch power from autocrats to the people but private universities today are not under any outside power.

At state schools tenure is evil. At private schools it is just stupid.

Posted by: Alec Rawls | Jun 12, 2017 9:58:33 AM

As one who observes up close and personal, if tenure were abolished and the "deadwood" fired there would be enough funds to pay the productive more, if that were needed.
The stereotype of how tenure turns some into useless drones has enough truth that it always makes many nervous when dropping it is discussed.

Posted by: JorgXMcKie | Jun 12, 2017 9:31:17 AM

I'm sure all of those young graduates of Harvard and Yale and MIT are going to race to take jobs at Robeson Community College instead of working at Goldman Sachs or Google or Sullivan and Cromwell.

You can see who will work for adjunct wages now. Or actually, you can't, because places like Robeson don't bother posting faculty profiles.

"For those who argue that tenured professors have accepted salaries far below what they would otherwise have earned in exchange for tenure, let's try an experiment at a college and eliminate tenure, then pay all of the previously tenured faculty what the untenured adjuncts are earning."

Posted by: Experiment | Jun 12, 2017 8:01:24 AM

Seems you're getting whiny comments from tenured professors.

Posted by: Buford Gooch | Jun 12, 2017 7:50:45 AM

Above someone repeats the lie that tenured professors make less than their counterparts. This is no longer true in the STEM, where a full professors salary exceeds industrial ones, and in the non-STEM area, there are often no jobs because the field has no value outside of an academia.

Tenure is a scam that has outlived its usefulness. From leading to the corruption of peer-review and publishing to the life time employment of the mediocre, there are no good reasons to support it anymore.

Posted by: Denton | Jun 12, 2017 7:11:00 AM

So it's all about you, huh? Not one mention of how tenure impacts students? Aren't law professors teachers, or am I confused?

Posted by: Dale Spradling | Jun 12, 2017 6:44:10 AM

He reminds me so much of Bill Shatner circa 1980 that I'm automatically biased in favor of his cause, whatever it might be.

Posted by: Jack Manhire | Jun 11, 2017 5:58:44 PM

For those who argue that tenured professors have accepted salaries far below what they would otherwise have earned in exchange for tenure, let's try an experiment at a college and eliminate tenure, then pay all of the previously tenured faculty what the untenured adjuncts are earning.

Posted by: PaulB | Jun 11, 2017 1:33:53 PM

Doesn't this guy realize he would've already been fired for sharing his anti-tenure views if he didn't have tenure?

Posted by: anonymous | Jun 11, 2017 8:21:06 AM

"The second lawsuit accuses a key defendant, the former business dean, of retaliating against Wetherbe -- essentially trying to get him to quit -- by assigning him first-year instead of graduate-level courses . . . upping his teaching load and returning part of a major grant for Wetherbe to Best Buy. The dean, Lance Nail . . . claimed a new entrepreneurial and innovation online journal project the grant was to fund wasn’t prestigious enough."

Good heavens. The dean asked a Professor to teach new classes that he thought were beneath him? And the Dean had the temerity to suggest that the source and use of money matters in deciding whether to accept it?

Posted by: snowflake | Jun 11, 2017 7:45:33 AM

It's all about risk and return. Tenured professors have low risk of being fired, so they can be--and are--paid less than their private sector counterparts.

Reduce job security at the universities and you'll either have to pay people a lot more, or won't be able to get anyone good to go into academe.

Posted by: tenure | Jun 11, 2017 7:40:39 AM

"nearly two-thirds of 1,081 college and university provosts" prefer to get rid of tenure.

Yes, and nearly 100% of CEOs prefer to get rid of labor unions, minimum wage, pensions, and work place safety rules, as demonstrated by outsourcing to the third world and lobbying and litigation efforts. All those rules get in the way of ruling a business like its your own personal fiefdom and hoarding as much of the upside as possible for yourself (er . . . I mean "managing efficiently").

There might be a few sour grapes who were passed over for tenure and don't want anyone else to have it out of spite. They tend to congregate at think tanks.

But most sane and sensible professors don't want to get rid of Tenure. The've taken massive risks by investing in skills that are only valuable in one industry--higher education. Moreover, those risks are not sufficiently compensated financially--professors virtually all make less, both in absolute terms and per hour, than they could have made in the private sector. In fields like law and medicine, hundreds of thousands less per year.

High skilled workers in finance and healthcare and law and technology businesses can make in one year what most professors make in 3 to 5 years.

If private sector workers simply save and invest a sensible share of earnings, within a decade they will have **MORE** financial security than any tenured professor, because no one is going to come a long and say "I think we should abolish private property" the way people like to say "I think we should abolish tenure."

Posted by: Laterals | Jun 11, 2017 7:36:48 AM