Further thoughts on tenure

Yesterday I posted an interview with Kyle Graham, a Santa Clara law professor who has decided to forgo the tenure process, and instead remain on the faculty without the protections and privileges tenure affords. Graham’s reasons for doing so are interestingly idiosyncratic: basically, he thinks that there’s too much of a risk that tenure protections will cause him to become bad at his job.

I didn’t want to complicate that post with my own thoughts on his reasons, but the comments thread raised a number of noteworthy issues:

(1) Is Graham’s position undermining his colleagues, either at SCU or more broadly, by signaling to the administrative class that tenure is unnecessary? I agree, I think, with commenter Gregor Sansa’s view:

This guy’s choice can be criticized in a lot of ways. But it’s also true that we’re not him. Maybe he knows something about himself that we don’t, and he really would turn into “that guy” if he got tenure. In the end, stupid or not, it’s his choice to make, and I don’t think trying to shame him with talk of indirect solidarity is really fair.

(If he were crossing some metaphorical picket line, that would be a different story. But nobody is offering him extra salary to forgo tenure so that they can undermine the system. His choice is and will remain an aberration.)

(2) How much of a problem is “that guy” — the person who abuses the privileges of tenure — anyway? Surely the answer to this is inevitably going to vary enormously across institutions. It’s true that horror stories about lazy and/or incompetent professors are a favorite anecdotal device of (generally right-wing) critics of American academia — and perhaps in other countries as well — and that anecdotes aren’t data. But it’s also true that the stronger protections are against firing without just cause, the greater the costs of firing people for cause necessarily become, which in turn means that at some point some people who should be fired won’t be. In my view it’s better to acknowledge this as a cost of tenure, although one that can perhaps be minimized in various ways, rather than to deny that tenure protections have perverse effects on some people.

(3) The best defense of tenure is that it allows valuable work to be done that would otherwise not be done, or not be done as well, and that the benefits of this justify the (real) costs of the system. I’m not the person to judge the value of the academic and popular writing that I’ve done on the dysfunctions of contemporary American legal education, but I could not have done this work without the protections of tenure. While in some ways Graham’s decision to spur his future self to better performance by forgoing tenure protections seems to me admirable, in other ways it strikes me as a remarkably naive attitude toward the realities of employer-employee relations, both in the contemporary American university, and more generally.

(4) Yesterday, while reading a draft of a very interesting paper by a labor historian regarding ways in which Title VII of the Civil Rights Act may have undermined labor solidarity in the USA, I was reminded of the extent to which, in my experience, professional class people in this country don’t appreciate what at-will employment actually means, either as formal legal concept, or a practical economic and political reality. Again and again, I’ve encountered the vague belief among highly educated people that your employer can only fire you for “good reasons,” even though for the vast majority of American workers, even in the professional classes, this isn’t true. While I’m fairly sure that Graham himself isn’t laboring under this misapprehension (surely as a lawyer who has considered his formal legal options he knows what his current employment rights do and don’t entail) his apparent belief that, whatever his formal legal rights may or may not be, he won’t be fired by his employer as long as he’s doing a good job, is perhaps in its own idiosyncratic way a bit of evidence that Econ 101 models regarding “efficient behavior” by employers are taken too literally by people who should know better.