Home / General / The uses (and potential abuses) of tenure: A conversation with Kyle Graham

The uses (and potential abuses) of tenure: A conversation with Kyle Graham

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Recently Kyle Graham, a professor on the tenure track at Santa Clara Law School, announced on his new blog that he had decided not to seek tenure, and would instead remain an untenured member of the faculty:

So, I decided a while back that I didn’t want to apply for tenure, and advised the administration and (more recently) the faculty at Santa Clara Law of my decision. I reached this conclusion after conducting an inventory of my strengths and weaknesses. Pursuant to this census, I determined that, assuming I remain in academia, I’d probably be a better teacher and scholar without the cushion that tenure provides . . .

A few people (not necessarily on our faculty) have described my decision not to seek tenure as “nuts,” “insane,” and “incredibly stupid.” The basic notion being, that I had good odds of receiving tenure had I applied for it, that tenure has its benefits, and that only a great fool would reach for what he has been given reject these benefits when they’re there for the taking.

I think that this calculus holds true for a lot of other professors, but not for me. In passing up tenure, I have conceded that if the school wants to retain me, I will have to forego some of the perks (such as sabbaticals) normally associated with tenured status. And of course, I will be fair game for dismissal if I start to teach poorly; if I don’t produce useful scholarship; if (in my view, the unlikeliest timeline) I write something that powerful people actually notice, and don’t like; or if other reasons make it in the interest of the school to move on.

But that’s fine by me. I am 40 years old. I can’t predict the person I will be 20 years from now. I just know that while I’m something of a self-starter, I have tended to perform better when I have internalized at least some outside pressure to work hard. I don’t want to be that guy — the professor who gets tenure, and then sits on his hands and reads straight from the casebook in class. I don’t think I’d be that person even with tenure. But why take chances? And although a professor without tenure is more likely to get dismissed than one with tenured status, that’s OK, too. I see it as my job, going forward, to perform well enough to make certain that doesn’t happen. If it does, well, I’ve still got my bar card, and being a park ranger wasn’t so bad, either.

This is of course a very unusual decision — indeed at many (most?) institutions of higher education in America it’s not an option people have, as the tenure systems under which they work are up or out — and I asked Graham if he would answer a few questions about it. He agreed to do so, and I’m reproducing our conversation below:

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Q: What’s the normal tenure track at SCU? Do people generally go up in their sixth or seventh year? (You’re in your sixth, correct?). When did you decide you weren’t going to pursue tenure?

A: Yup, this is my sixth academic year at Santa Clara. It’s customary for tenure-track law professors here to apply for tenure in their sixth year. I don’t remember precisely when I decided not to apply for tenure, but if memory serves I advised the administration of my choice a while back, a little less than a year ago.

Q: You have something of an eclectic resume. You worked for a year for McKinsey after college, then for two years for a national firm after law school, and then for three years for a rural DA’s office, before becoming a legal academic. In addition you did a year-long federal clerkship immediately after law school, and a two-year state supreme court clerkship between the firm and DA jobs. That’s quite a bit of moving around, in the context of four pretty distinct career tracks. Some might see this as evidence of someone who becomes easily dissatisfied — and not just with individual employers, but with types of work. Is not seeking tenure perhaps a way to, psychologically speaking, keep the door open to quitting legal academia if something more interesting comes along?

A: You forgot about my pre-law school tenure as a park ranger, an experience that I like to shoehorn into every conversation I can, mostly because it makes me sound more interesting than I actually am.
As for post-law-school positions, I’ll pick a fight with two of the premises within the question: the clerkships were term-limited, so it’s not as if I could’ve stayed in those positions any longer than I did. I have worked at a law firm, in the public sector, and now in academia, but I don’t know that two genuine career transitions in 13 post-law school years is all that unusual these days. And, I should stress, I have liked all three of these jobs. I would’ve returned to the law firm after my second clerkship, had the position in Mono County not become available. My wife and I moved to Mono County, up in California’s beautiful Eastern Sierra, for lots of reasons. One of them was simply this — we had worked quite hard, building up “career equity,” as it were, for several years — why not use that equity to do something different, maybe a little professionally risky, and probably a lot of fun? And it was; I was lucky to work for a great District Attorney, got some trial experience, and became a more thoughtful lawyer. But after a few years, it became clear to my wife and I that we should move. I landed in academia, thanks to my after-work hobby of writing law-review articles. And this has been a fun, and rewarding, job as well.

But that’s not really answering your question. My more direct answer is this: no. If my primary goal was to keep my options as open as possible, I’d apply for tenure, which would be option-enhancing for what are probably pretty obvious reasons. Indeed, one of the main “you are so dumb” lines of feedback I have received is that my decision not to seek tenure will come back to haunt me if I ever want to lateral to another institution, or make another career change. *shrug*

Q: Is there anything about the present state of American legal education that played a role in your decision not to seek tenure?

A: I certainly hold opinions about our profession and our responsibilities to current, prospective, and past students, but my decision was at root a personal one. I believe that if I remain in academia, I will be a more effective teacher and scholar without the protections of tenure. Other professors can and do employ a different calculus to reach contrary results for themselves. Which is fine; even desirable.

Q: In your blog post, you say you don’t want tenure because you don’t want to become “that guy,” who uses tenure as an excuse for doing a bad job, by for example teaching poorly, or failing to produce useful scholarship. Doesn’t this raise some difficult questions of evaluation? For one thing, at most law schools the only basis for evaluating teaching outside the tenure and promotion process are student evaluations. Should such evaluations be the exclusive basis for deciding if a faculty member who chooses not to pursue tenure is now teaching poorly? As for useful scholarship, the evaluative problem is even sharper, as the tenure and promotion process is the only formal (and often as a practical matter the only informal) peer evaluation that legal academic scholarship ever gets.

A: I agree that it can be difficult to evaluate law-professor performance. But the same is true, in the abstract, for lots of jobs that don’t enjoy tenure protections. And I don’t think our performance, as law professors, is uniquely impervious to rigorous and credible assessment.

What should this assessment entail? That’s a good and complicated question, one that I don’t think I can capably answer in this forum. I would quickly observe that many practicing lawyers receive both “vertical” (both from their superiors and those ‘below’ them) and “horizontal” (from varying removes, ranging from close colleagues to one-time clients) annual performance evaluations. Robust feedback of this sort isn’t altogether foreign to law professors; as you note, it’s collected in connection with decisions to grant or deny tenure, for example.

Q: You raise the issue of “powerful people” noticing something you’ve written and not liking it, but dismiss this as highly unlikely. This may well be true in regard to the putative audience for most conventional legal scholarship (judges, legislators, and the like), but it may well not be true if the powerful people in question are your employers. Have you considered that not having tenure will make it far more difficult to engage in any serious institutional criticism, either internally or (especially) externally?

A: I should point out that what I consider especially unlikely is that any powerful people will ever even notice my scholarship; I don’t flatter myself to think that Chief Justice Roberts is reading, say, Why Torts Die at this very moment, much less to believe that he’s enjoying it. As for a potent populace here in Bannan and Bergin Halls at Santa Clara Law, I am fortunate to work with a great administration and faculty. I have not hesitated to speak my mind (politely, but still) even as an untenured professor, and have never received any collective criticism for doing so. On the contrary, I have been told by other faculty members that they appreciate these contributions, even if they sometimes disagree with me. In short, my experience — which may be idiosyncratic — has been that our faculty enjoys robust, respectful debate, even on issues where academics supposedly march in lockstep. And, no, I don’t think I’ll be any more or less influential here without tenure, than I would be with tenure. We have several untenured faculty and staff at Santa Clara whose views carry as much weight as those expressed by any tenured member of the faculty.

Q: What about job security issues that have nothing to do with issues of expression? For example, many law schools today are under increasingly severe financial pressure, and a number of schools have reduced their faculties via various methods ranging from purely voluntary buyouts, to less voluntary financial severance packages, to straight layoffs. As an untenured faculty member, you will have less employment protection than any of your tenured colleagues, without regard to professional competence or value to the institution. Does this concern you?

A: On some level, sure. That said, I’ve been in “at-will” positions before, where my job security was certainly no better, and may have been much worse, than it will be as an untenured professor. Going forward, the optimistic part of me says, just do a good job, and things will take care of themselves. And if they don’t, as I said earlier I am lucky in that I enjoy legal practice, as well.

But if I can hijack this Q&A and take it in for landing, I also would stress that I didn’t become an academic for the job security. This sounds incredibly hokey, but I only want to be in this job for so long as I am helping my students succeed. I don’t know if I do a great job as a teacher, mentor, and resource, but I do try hard in these respects. (I also write, but mostly because I enjoy it; I’d still be writing law-review articles if I were still a deputy DA.) And perhaps this next comment bespeaks the insecurities inherent in many professors, but I simultaneously trust and don’t trust my own assessment of my teaching and other contributions to our institution.

One problem with tenure, at least for me, is that from that point forward only my own assessment of my contributions would matter, and over time I could become enormously biased toward the view that I am a super-terrific teacher, scholar, and all-around guy even when it’s objectively apparent that I’m not. If a critical mass develops that I am harming, rather than helping the institution, then I should be asked to do something else. Regardless of what I might think down the road, when that actually happens.

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