Employee Rights and Employment Policy Journal
LABORING IN THE ACADEMIC MARKETPLACE: THE
CASE FOR TENURE
KENNETH G. DAU-SCHMIDT*
[P.293]"Ultimately, the case for tenure rests on a firm understanding of what it is and what it is not. This book is meant to illuminate that
understanding. My hope is that once tenure is seen in each of its parts and as a whole, warts and all, it will need no defense." Mat-thew
W. Finkin 1
There has been considerable debate about the merits of academic
tenure in recent years. Articles and books questioning tenure's con-tinued
utility and proposing alternatives, including term contracts and
post tenure review, have appeared in both the popular and academic
press. 2 The forces driving this reconsideration of tenure include: gen-uine
interest in improving faculty performance; suspicion of any insti-tution
that seems inconsistent with the corporate private sector model
ascendant in the American imagination in these later years of the
twentieth century; suspicion, or perhaps jealousy, of job security in the
academic labor market at a time when workers in other labor markets
are experiencing job insecurity due to corporate reorganization and
"downsizing;" and political discontent among right-wing theorists and
activists who perceive academia as the last bastion of liberals in the
United States. 3 As a result, the attack on tenure has generally come
as a characterization of tenure as an outmoded and elitist institution
that protects academic sloth and incompetence and interferes with the
efficient operation of colleges and universities. In response to this as-sault
on tenure, academics across the country have found themselves
debating the problems and virtues of the tenure system, and usually
fighting a rearguard action to preserve the system, generally on the
somewhat mushy ground of maintaining "academic freedom." This
debate has not been entirely "academic," since trustees and adminis-trators
at several colleges and universities have gone beyond merely
questioning tenure's utility, to attempting to institute changes in the
substantive and procedural protections afforded by tenure. 4
Matthew Finkin's new book, The Case for Tenure, should provide
much needed rigor to the debate on academic tenure, and act as an
excellent resource for those of us who have always known that the
institution of tenure lay at the heart of the academic enterprise. In the
book, Finkin combines excerpts from articles and cases on tenure with
his own instructive notes to provide the reader with a complete view
of the institution of tenure, as Finkin would say, "warts and all." The
selected articles and notes provide a rigorous exposition of the aca-demic
freedom argument, as well as other often ignored reasons for
the institution of tenure such as its importance to the academy's sys-tems
of peer review and faculty governance. The selected cases
breathe life into these arguments and place the flesh of real live aca-demics
over the bones of this theoretical structure. As a sound schol-arly
examination of the subject, the book also addresses the problems
of tenure, including "dead wood," 5 constraint of university hiring poli-cies
including the recruitment of minority and female faculty, 6 and the
specter of an ancient doddering tenured academy freed from the bond
of mandatory retirement by the Age Discrimination in Employment
Act (ADEA). 7 The book also examines the efficacy of the alterna-tives,
including employment at will, term contracts and post tenure
review. Ultimately the book succeeds, just as hoped by Finkin, in pro-viding
a convincing account of the need for academic tenure, not just
to provide academics with some measure of protection against politi-cally
motivated restrictions on their teaching and research, but also for
the efficient operation of a modern university. Moreover, the book
implicitly and expressly challenges those who want to amend or re-place
the tenure system to address the very real issues and concerns
in the lives of academics and the efficient operation of modern univer-sities
that the tenure system addresses. 8
I. THE BOOK
The book begins with a chapter on "The Meaning of Tenure,"
which serves as an introduction to the substantive and procedural pro-tections
of tenure as well as the reasons for tenure and its problems.
The chapter includes excerpts of classic articles by William Van Al-styne 9
and Fritz Machlup, 10 as well as extracts from American Associ-ation
of University Professors (AAUP) reports on incidents at Rollins
College 11 and Bennington College. 12 Van Alstyne defines tenure as a
guarantee that, after a lengthy probationary period, full time academic
personnel who are retained in employment by a college or university
will not be punished or discharged without academic due process, con-sisting
of a showing of adequate cause at a hearing before an impartial
judge, with notice, and an opportunity to be heard. 13 Van Alstyne
nicely finesses one of the more difficult definitional problems in em-ployment
law by defining "adequate cause" as a showing of program
termination, financial exigency or misfeasance sufficient to overcome
a "rebuttable presumption of excellence." 14 Van Alstyne also ex-plores
some of the reasons for tenure, including academic freedom,
contracting high skilled labor at a reasonable wage and "to do justice
and . . . avoid errors." 15 Machlup delineates the institution of tenure
in typical economic fashion by examining both the costs and benefits
of the tenure system. Machlup examines the disadvantages of tenure
to individual professors, the profession and academic institutions, but
concludes that these disadvantages are more than made up for by the
benefits of tenure in requiring faculties to take appointments seriously
and promoting research that benefits society as a whole. 16 The Rollins
College incident involves the dismissal of an "excellent teacher," Pro-fessor
Rice, who runs afoul of the College President for raising ques-tions
about curriculum and pedagogy, 17 while the Bennington College
case relates the recent unfortunate events at that College in which the
Trustees used the college's financial difficulties as an excuse to assert
control over the faculty and discharge everyone with an ounce of
spine. 18 Both cases serve to define tenure in the negative by showing,
in very real terms, what higher education might be like without the
Further elaboration on various facets of the tenure system is pro-vided
in the next two chapters. Chapter two discusses the probation-ary
period and includes an excerpt from the case of Jackson v. Harvard University 19
and a further excerpt from Van Alstyne's arti-cle. 20
The Jackson case is included largely to give a detailed outline of
the traditional academic probationary period and the procedures for
evaluating a probationary faculty member for tenure. The Van Al-styne
excerpt is used to answer the very interesting and deceptively
difficult question, posed by Finkin in a connective passage, as to why
there is a probationary period at all, given that tenure is necessary for
the production of good research. Chapter three consists largely of an
excerpt from the case King v. University of Minnesota 21 which sets
forth the due process procedural requirements for the discharge of
tenured professors at public universities. The practice has been that
tenure itself guarantees similar procedural safeguards in the private
The fourth chapter, on the economics of tenure, is perhaps the
most useful and interesting chapter of the book for those who are al-ready
well acquainted with the tenure system. The chapter consists
primarily of an edited version of a book chapter on the economics of
tenure by Michael McPherson and Gordon Winston. 23 In the chapter,
McPherson and Winston explore the characteristics of both the de-mand
and supply sides of the academic labor market and conclude
that, "The system of rigorous probation followed by tenure is a rea-sonable
way of solving the peculiar personnel problems that arise in
employing expensively trained and narrowly specialized people to
spend their lifetimes at well-defined and narrowly specialized tasks." 24
Although the chapter discusses some concepts which are generally
confined to the well-defined and narrowly specialized discussions of
labor economists, for example the "internal labor market," the gen-eral
text of the article is quite approachable and should be required
reading for any administrator or trustee contemplating changes in the
Chapter five on "Tenure and Resource Allocation" deals with the
questions of how to determine when financial exigency or program
termination allows institutions to discharge tenured professors and
what procedures are required for terminations on these grounds. The
chapter consists of excerpts from the AAUP's report on the recent
attempted mass discharge of tenured professors at San Diego State
University 25 and the case of Jimenez v. Almodovar. 26 The San Diego
State University case seems to be included as a catalogue of what not
to do in such cases. At San Diego State the president made the deci-sion
to undertake the discharges without faculty input or hearings and
when other quite viable alternatives for dealing with the university's
budgetary problems existed. The Jimenez case seems to be included
as an example of how such discharges might be handled when neces-sary
since the affected faculty members were afforded full due process
hearings and discharged only after termination of their program was
determined, in good faith, to be "unavoidable." 27 In the Jimenez
case, substantial efforts also were undertaken to find the affected
faculty members comparable jobs in the same university system. 28
Finkin also uses the chapter as a chance to comment on Richard
Chait's proposal for a "market mediated" tenure, in which institutions
would be free to discontinue select areas or individuals in response to
changes in student demand. 29 Finkin argues that students are not
strictly analogous to consumers, in that they are uninformed as to the
value of certain courses. 30 Finkin also argues that faculty would be
discouraged from investing in their specialized human capital if jobs
were left subject to capricious short-run changes in student demand. 31
The last three chapters of the book deal with topics of recent or
current interest in the debate over tenure. Chapter six deals with the
subject of tenure and retirement, and consists largely of an excerpt
from the National Research Council's report on the effect of ending
mandatory retirement for tenured faculty, 32 and portions of a treatise
entitled Faculty Retirement in the Arts and Sciences by Albert Rees
and Sharon Smith. 33 Both selections conclude that prohibiting
mandatory retirement will result in a postponement of retirement
among tenured professors only at large private research institutions,
that this will have no effect on teaching at these institutions but may
result in a decline in research activities, and that, if the affected uni-versities
want to avoid these results, probably the most cost effective
way to deal with the issue is to offer retirement benefits that en-courage
early retirement. 34 Chapter seven deals with the subject of
post tenure review and includes portions of published remarks by Bry-ant
Kearl 35 and the conclusions of the American Council on Educa-tion's
Wingspread Conference on the subject. 36 Kearl outlines the
extensive system of review to which universities and colleges already
subject their tenured faculty, and concludes, as did the Wingspread
Conference, that further review of tenured faculty would be a waste of
time and resources. The final chapter addresses "The New Criticism"
raised by Richard Chait 37 that tenure is superfluous to existing First
Amendment protections and that it is too protective in that it allows
faculty "to offer unsubstantiated conclusions and pernicious perspec-tives
with utter impunity." 38 Finkin responds that the First Amend-ment
only protects professors at public institutions, and then only on
matters of "public concern" (not matters of pedagogy or faculty gov-ernance).
Moreover, the First Amendment does not afford the same
procedural protections as tenure. Finkin argues that such procedural
1997] THE CASE FOR TENURE 299
protections are important in evaluating cases of "academic dishon-esty"
like those alleged by Chait. 39
II. THE CASE FOR TENURE
Considering Finkin's collected materials as a whole, the case for
tenure is that the present tenure system is a useful adaptation to cer-tain
unusual attributes of academic labor, and that this adaptation
provides important benefits to professors, institutions of higher educa-tion
and society as a whole.
The first argument, which is basically a rigorous statement of the
traditional academic freedom argument, is that universities are en-gaged
in a somewhat unique endeavor, the production and dissemina-tion
of knowledge, and that the academic freedom that tenure affords
professors is vital to the success of this enterprise. 40 Scholars will not
be as successful in developing new ideas and disseminating those ideas
to the general population if they do not have some protection from
retribution in their personal career for challenging the conventional
wisdom. 41 Moreover, the usual business hierarchy is not useful to this
endeavor. Thus universities do not value the subordination of the in-dividual
that comes with the traditional corporate model of employee
discipline, at least with respect to academic employees. 42 Finally, be-cause
universities undertake this enterprise largely on a non-proprie-tary
basis, the benefits of this labor, and academic freedom, are
largely external to the contracting parties. Accordingly, as useful as
tenure might be to the parties to the academic labor contract, there
are also benefits of tenure to the larger society. So a case might be
made for imposing the tenure system on academics and institutions of
higher learning even if they had not developed it themselves. 43
Second, it is maintained that, in comparison with other employ-ees,
academic personnel possess an unusual amount of information
that is useful in the management of the enterprise and that tenure is
necessary to ensure that academics successfully share this information
with their institution. 44 It is the faculty and perhaps departmental
chairperson, and certainly not the provost, president or trustees, who
know which subatomic physicist and which Kantian philosopher
should be hired, retained or promoted. 45 Moreover, the faculty have
the knowledge necessary to determine what research and teaching
agenda the institution should undertake and how to pursue that
agenda most efficiently: what projects to pursue, what resources are
needed, what pedagogy is most successful, and what curriculum will
be successful. As a result, it is very important to the successful run-ning
of a college or university that faculty participate in these deci-sions
through systems of peer review and faculty governance. Tenure
is vital to a system of peer review, to ensure that faculty evaluations
are not compromised by the potential impact of hiring, promotion,
and retention decisions on the faculty member conducting the evalua-tion. 46
Tenure is also essential to an effective system of faculty gov-ernance,
to ensure that faculty are free to disagree with the
administration on administrative matters and fully share the informa-tion
they have on such issues. 47
Third, it is argued that, because they invest heavily in "occupation
specific human capital," 48 faculty have a strong interest in occupa-tional
job security and can achieve a mutually beneficial bargain with
their employers by accepting lower wages in exchange for security in a
specific job. 49 Unlike most nonacademic employees, academics' train-ing
is predominantly "occupation specific," or how to be productive in
one job (for example, that of a political science professor), rather than
"firm specific," or how to be productive within a firm or institution,
perhaps in a variety of different jobs. 50 As a result, unlike nonaca-demic
employees whose employer will pay for their firm specific train-ing,
academic employees will be left to bear the costs of their own,
rather extensive, occupation specific training, because its value is
nonappropriable by their employer. 51 Also, unlike nonacademic em-ployees
who may have a number of different jobs or occupations with
the same employer, academics will generally change employers before
they change occupations because they are more tied to their occupa-tion
than to a specific employer by their training. 52 Thus, academics
have a large personal investment in training for a specific occupation
and, being risk averse, are willing to accept substantially lower wages
in return for guarantees of job security in that occupation. 53 It seems
reasonable that colleges and universities, being able to diversify and
therefore being relatively less risk averse, would seek to recruit the
best faculty they could, given their budget constraints, by offering job
security and lower wages. 54
Finally, it is asserted that the current tenure system is a logical
and efficient solution for universities to the problem of assigning aca-demic
workers responsibilities and wages in accordance with their
productivity when such workers are costly to monitor and very
strongly tied to one occupation. 55 Academics are costly to monitor
because much of their job is creative and because, as previously dis-cussed,
you generally need to employ another highly trained and spe-cialized
academic to evaluate their work. As has already been
established, academics are strongly wedded to their occupation by
their extensive occupation specific training. For nonacademic labor
that is not costly to monitor and not so heavily invested in occupation
specific training, the traditional corporate solution to the problem of
assigning responsibility and wages in accordance with productivity is
solved by monitoring the employees over the course of their employ-ment
and assigning employees to higher or lower responsibility and
wage jobs within the corporation according to their productivity.
Promises of job security that can be used to lower wage bills and de-crease
turnover costs are made in the form of an express or implicit
promise of continued employment with the firm rather than a promise
of a particular job. Since academics are costly to monitor, and there is
little selection of jobs in the institution for which their training might
qualify them (a French professor can't teach physics, or, be produc-tively
employed as a secretary), it is rational to instead solve the prob-lem
of assigning employees responsibility and wages in accordance to
their productivity through a costly initial screening, including an ex-tensive
probationary period, followed by a nonprobationary period in
the same job with less monitoring after the institution has decided the
employee is of sufficient productivity to employ. 56 Promises of job
security to reduce wages and turnover costs would logically attach to
the job for which the employee was trained rather than to the institu-tion
as a whole.
There are of course costs to tenure. The intense scrutiny of the
probationary period is not always successful in weeding out people
who cannot be trusted to be productive during the later period of job
security and lessened monitoring resulting in the proverbial "dead
wood." 57 Even faculty who remain productive through out their ca-reer
may be less productive with the security of tenure than they
would be if they could be constantly fairly and effectively monitored
and rewarded or punished based on their performance. 58 Moreover,
tenure restricts college and university administrations in their efforts
to undertake administrative goals, for example the quick upgrading of
the faculty of a certain department 59 or the speedy diversification of a
faculty by hiring numerous qualified women or minority professors. 60
The tenure system may also be unfair to individual academics who are
meritorious, but develop too slowly to prove themselves within the
probationary period, or who are of only average ability but start out at
first rate institutions and end up moving from job to job as they move
down the institutional hierarchy to a school at which they can achieve
However, the contributors to Finkin's book argue that the bene-fits
of tenure out weigh its costs, 62 and this argument seems persua-sive.
Academics obviously have an enormous personal investment in
very highly specialized human capital. Although opportunities with
other employers might protect them early in their careers, as academ-ics
progress over the life-cycle and become less mobile, they would
seem particularly subject to coercion and opportunistic behavior by
their employer. Thus, promises of job security would be particularly
valuable to academic employees and would be particularly important
in ensuring that these employees provided accurate information,
rather than what they supposed their employer wanted to hear, in the
conduct of their research, teaching, peer evaluation and faculty gov-ernance.
Moreover, it is convincing to argue that it is particularly im-portant
to the academic enterprise that academics provide accurate
information, not only in their research for the benefits of new knowl-edge,
but also in peer review and the running of the university. Com-paring
the academic enterprise with other enterprises, it is remarkable
the extent to which the "production process," research and teaching,
is concentrated from beginning to end in one class of employees --
professors. With amazingly little division of labor, teaching and re-search
projects are initiated and completed largely within the confines
of the academic's "shop" with the remainder of university and college
personnel, from the president to janitor, acting as support staff to en-sure
that the academics have what they need to do their job. Thus, it
seems quite plausible that this vital class of academic employees might
have useful information to contribute to their employer about how the
production process should be undertaken. Perhaps attesting to the
difficulty and expense of monitoring faculty, there are no rigorous es-timates
of faculty dead wood, but available administrative shirt sleeve
estimates place the percent of faculty who are merely sleeping on their
tenure in the low single digits. 63 The restrictions of tenure on univer-sity
and college hiring practices are real, but with respect to promises
of job security to existing personnel, these were promises freely made
and on which faculty have relied, to the detriment of their wages. One
would have to wonder about the equity, let alone the legality, 64 of
implicit suggestions that universities and colleges be free to jettison
their current tenured faculty for the purposes of "upgrading" 65 or hir-ing
more women and minority faculty. Finally, the empirical work
that does exist suggests that the fears of losses in academic productiv-ity
due to the amendments to the Age Discrimination in Employment
Act extending the prohibition on mandatory retirement provisions to
tenured professors have been largely groundless with what ill effects
there have been largely limited to large private research institutions
that have the resources to deal with the problem. 66
Moreover, the Finkin collection demonstrates that, at the very
least, the case has not yet been made that any of the proposed alterna-tives
or amendments to the tenure system adequately address the
problems of the academic labor market. Employment-at-will fails to
take advantage of the potential gains from trade in job security and
wages afforded by academics' heavy investment in human capital and
risk averseness relative to their employer. How these at-will academ-ics
would be effectively monitored using evaluations by other at-will
academics, in constant competition for the same position, has also not
been established. Faculty governance would be a joke, so that the use-ful
information academics contribute toward the running of their insti-tutions
would be seriously compromised. Research and teaching
would be subject to pressure from the public and major donors to an
even greater extent than they are now, so that the academic product
would come to more closely resemble and reaffirm the status quo than
genuinely new insights and advances. Term contracts and post tenure
review do little better. These alternatives remove the "nodal point" 67
of the up-or-out tenure decision and run the risk of becoming pro
forma under a system of "tenure by courtesy." 68 Faculties and admin-istrators
will not take the reviews as seriously as the current tenure
reviews because they commit the institution only for a limited term
and, as a result, may let substandard performers slide to be dealt with
by future decision makers. Alternatively, if the decisions are taken
seriously, the periodic reviews will be very costly. 69 Moreover,
although these alternatives would offer faculty some protection from
discharge, to the extent they make faculty subject to the whim of ad-ministrators,
they are subject to the same criticisms of undermining
faculty governance, teaching and research as the employment-at-will
III. THE MUSINGS OF A TENURED PROFESSOR
Like all good scholarship, the materials in Finkin's book
prompted me to think about some related arguments and questions
regarding the tenure system that might bear further discussion and
analysis. Humor me now, while I set forth an initial discussion of
these arguments and questions, confident that, as a tenured professor,
my years of investment in my career and my family's economic future
are safe regardless of what my employer or any other reader might
think of my arguments.
First of all, in reading the materials in Finkin's book, it struck me
that much more can be done with the argument that tenure is a public
good. 71 Several authors in Finkin's book put forward the argument
that research is a public good and thus, to the extent tenure makes
possible or improves research, it is also a public good. 72 But the argu-ment
can be stated more broadly. Certainly with respect to tenure's
role in supporting peer review and faculty governance, tenure is a
public good. Peer review and faculty governance are themselves pub-lic
goods from the perspective of the educational institution, since the
benefits of these important functions are enjoyed much more broadly
in the institution than merely among the people that undertake these
tasks and there is generally very little individual reward to compen-sate
the people who perform these tasks. 73 Accordingly, to the extent
that tenure makes the performance of these public goods possible, it is
also a public good. Furthermore, it can be argued that the determina-tion
of whether an institution operates with or without tenure is also a
public good. It is hard to imagine academic faculty of equal rank and
function operating, some with and some without tenure. Tenured
faculty would have obvious advantages in performing peer review and
governance functions and thus would come to dominate these
func-tions. 74 Moreover, as Finkin has argued elsewhere, 75 it is probably
true that the effectiveness of those who are active in faculty govern-ance
is in part dependent on the potential that the mass of faculty who
are quiet and complacent on the subject could, at some point, be
roused to action in opposing administration actions or policies under
the protection of their tenure.
This public good argument directly countermands the recent sug-gestion
by David Breneman that faculty should be given the option of
receiving tenure or foregoing tenure and receiving a larger salary. 76
Professor Breneman argues that if untenured positions could be de-vised
in a non-demeaning way, with all of the other prequisites and
amenities of a full academic appointment, some academics, especially
the best and most marketable, might actually prefer a small wage pre-mium
to tenure. 77 Richard Chait has extended Breneman's proposal
by suggesting that universities might also seek to buy out the tenure of
current faculty members with a wage premium. 78 However, the tradi-tional
public good analysis suggests that we should take little comfort
in evaluating the value of tenure from the fact that some individual
faculty members would undoubtedly agree to bargain theirs away. In-dividual
professors would not take into account the public value of
their research and service in deciding whether to give up tenure and
accept the higher wage, with the result being that research and service
would suffer as too few professors decided to remain in the tenure
system. 79 Moreover, as previously argued, it seems doubtful that
equal academic positions could be constructed both with and without
tenure. 80 Tenure is too important to the essential academic functions
of research, teaching and service not to influence how the job is un-dertaken
and the prestige attached to the position.
The astute reader will recognize that Professor Breneman's pro-posal
has in fact been undertaken, on a somewhat less generous basis,
at academic institutions across the country. Since at least the 1980's,
colleges and universities have cut back on hiring tenure track profes-sors
and substituted graduate students and part-time and temporary
"instructors" to take over teaching responsibilities. Unlike Brene-man's
proposal, however, the untenured nature of these jobs is not
elected by the employee and the jobs are (inevitably?) low in pay and
prestige and involve no service or research responsibilities. Even
under the public good analysis, it is a neat question what percent of an
institution's faculty need to be tenured professors and what percent
can be confined to being much less without sacrificing the research
and teaching objectives of the institution. Fritz Machlup has ad-dressed
this issue, asking instead how many tenured faculty can the
institution accommodate consistent with other desirable institutional
ends? 81 However, the public good analysis is instructive as to how we
should view this development. Under this analysis, the erosion of the
American academy into untenured dead end jobs seems a desperate
strategy on the part of institutions, strapped for cash because of cuts in
state and federal support for education and encouraged in this trend
by a flush market in young academics, to create low cost teaching po-sitions
that free ride on the research and service work of the remain-ing
tenured faculty. This is a short run strategy designed to address
pressing budgetary problems at the expense of research and service,
rather than some optimal long run strategy for pursuit of the academic
Finally, given the analysis of the academic labor market in
Finkin's book, I wonder if all of the alternatives to tenure have in fact
been adequately addressed in the current debate over tenure.
Although the materials in the book make a convincing case that aca-demic
laborers are different, in kind or degree, from most other labor-ers,
in reading the book I felt as if I'd seen this beast, or something
very much like it, before in my studies. Let's see, the academic is
highly skilled so that he or she is effectively committed to work in one
occupation for life and would be difficult for an employer to replace
en masse. Sounds like the proto-typical skilled tradesman that pio-neered
labor organization in this country in the early nineteenth cen-tury
and was the back bone of the American Federation of Labor
from its inception in 1886 until its merger with the Congress of Indus-trial
Organizations in 1955. 82 Although academics have long had an
aversion to organization on the grounds that they are a "profession"
rather than a "trade," given the obvious vulnerability to employer op-portunism
of employees who are so heavily personally invested in
highly specialized human capital, I suspect that such a fine, and
frankly irrational, distinction would soon go by the boards if there
were a substantial and pervasive threat to tenure in the academic in-dustry.
Thus, the real alternative to tenure is not employment-at-will,
term contracts, post tenure review or any scheme devised by Brene-man
or Chait, but collective bargaining. Certainly the recent experi-ence
at the University of Minnesota where a highly "professional"
faculty seriously threatened to organize after the university trustees
acted to compromise their tenure, and backed off only after the trust-ees
had rescinded their prior actions, 83 supports this view. Thus, ad-ministrators
and trustees who might seek to undermine tenure in an
attempt to trim dead wood or achieve more flexibility in hiring should
consider whether they want to deal with the faculty through tradi-tional
faculty governance or through collective bargaining, since I
doubt that the professorate will tolerate either much insecurity in em-ployment
or a significantly diminished role in college and university
Matthew Finkin has produced a very useful tome that accurately
describes the institution of tenure and the case that can be made for
that venerable institution. The materials collected in Finkin's book go
well beyond the important, yet well worn, arguments about the neces-sity
of tenure to academic freedom in teaching and research to ex-amine
the importance of this institution in solving the somewhat
unusual problems of the academic labor market and fostering the in-stitutions
of peer review and faculty governance so necessary to the
efficient running of the modern college or university. The book will
be useful to anyone currently engaged in the debate over tenure, but
is also of sufficient detail that it could serve as a reference or resource
book for someone trying to understand or administer the academic
tenure system. Due to the breadth of the arguments contained in
Finkin's selections, the book will also be of interest to those of us who
have made a hobby, or perhaps a career, out of studying the academic
labor market. Finally, I hope the book will be of interest to adminis-trators
and trustees who are tempted to tinker with the tenure system
or import real or imagined systems of hierarchical responsibility from
private corporate America into academia. Finkin's collection sets
forth the very real problems of the academic labor market that tenure
is designed to address and which would have to be confronted by
these managerial experiments.
* Kenneth G. Dau-Schmidt, Professor of Law, and John S. Hastings Faculty Fellow, Indiana University -Bloomington; Ph. D. in Economics, University of Michigan, 1984; J. D.,
University of Michigan, 1981; M. A. in Economics, University of Michigan, 1981; B. A. in Economics and Political Science, University of Wisconsin-Madison, 1978. I would like to thank
Marty Malin for inviting me to participate in the inaugural edition of the Employee Rights and Employment Policy Journal by writing this review.
1. THE CASE FOR TENURE 2 (Matthew W. Finkin ed. 1996).
2. See, e. g., RICHARD P. CHAIT AND ANDREW T. FORD, BEYOND TRADITIONAL TENURE:
A GUIDE TO SOUND POLICIES AND PRACTICES (1982); Richard P. Chait. The Future of Academic Tenure, AGB PRIORITIES (Spring 1995); David W. Breneman, Alternatives to Tenure for the Next
Generation of Academics, working paper #14, American Association for Higher Education New Pathways Serves (1997); Brent Staples, Editorial Notebook; The End of Tenure?, N. Y. TIMES,
June 29, 1997, at 14. Editorial, Tenure Tenacity, WASH. POST, March 10, 1996 at C06; but see FREEDOM AND TENURE IN THE ACADEMY (William W. Van Alstyne ed. 1993); Julius G. Getman
and Brian Leiter, There's No Good Reason to Junk Faculty Tenure at UT, AUSTIN AMERICAN-STATESMAN, July 22, 1996, at A7; Jeanne M. Zarucch, Tenure Protects Quality Teaching, ST.
LOUIS POST-DISPATCH, March 31, 1997, at o7B.
3. For an example of a politically motivated article see George Will, Disgusted Teaching
Assistants, Tenure Plague College Campuses, FRESNO BEE, April 21, 1997, at B5.
4. These institutions include such esteemed schools as the University of Wisconsin, the University of Minnesota, the University of Colorado, and the Arizona State University System.
5. Finkin, supra note 1, at 14-15, 116-17.
6. Id. at 89-90.
7. 29 U. S. C. ¦¦ 621-634 (1994).
8. Finkin, supra note 1, at 117-18, 120, 195.
9. William W. Van Alstyne, Tenure: A Summary, Explanation and Defense, 57 AAUP
BULL. 329-51 (1971).
10. Fritz Machulp, In Defense of Academic Tenure, 50 AAUP BULL. 112-24 (1964).
11. Committee Report, Academic Freedom and Tenure: Rollins College, 19 AAUP BULL. 416-32 (1933).
12. Committee Report, Academic Freedom and Tenure: Bennington College, 81 ACADEME 91-103 (1995).
13. Finkin, surpa note 1, at 4-5.
14. Id. at 5.
15. Id. at 6.
16. Id. at 11-26.
17. Id. at 34-36.
18. Id. at 60.
19. 721 F. Supp. 1397 (D. Mass. 1989), aff'd, 900 F. 2d 464 (1st Cir.), cert. denied, 498 U. S. 848 (1990).
20. Van Alstyne, supra note 9.
21. 774 F. 2d 224 (8 th Cir. 1985), cert. denied, 475 U. S. 1095 (1986).
22. Finkin, supra note 1, at 92.
23. Michael S. McPherson & Gordon C. Winston, The Economics of Academic Tenure: A
Relational Perspective, in PAYING THE PIPER: PRODUCTIVITY, INCENTIVES, AND FINANCING IN U. S. HIGHER EDUCATION (M. McPherson, et. al. eds., 1993).
24. Finkin, supra note 1, at 101.
25. Committee Report, San Diego State University: An Administrator's Response to Finan-cial Stress, 79 ACADEME 94-115 (1993).
26. 650 F. 2d 363 (1 st Cir. 1981).
27. Finkin, supra note 1, at 163.
28. Id. at 161.
29. Id. at 166.
30. Id. at 166-67. This certainly rings true to my experience in that I am quite confident writing would all but disappear from the curriculum if left purely to the dictates of student
31. Id. at 167-68.
32. COMMITTEE ON MANDATORY RETIREMENT IN HIGHER EDUC., COMM'N ON BEHAV-IORAL
AND SOCIAL SCIENCES AND EDUC., NATIONAL RESEARCH COUNCIL, ENDING
MANDATORY RETIREMENT FOR TENURED FACULTY: THE CONSEQUENCES FOR HIGHER EDUCA-TION (P. Brett Hammond & Harriot P. Morgan eds., 1991).
33. ALBERT REES & SHARON SMITH, FACULTY RETIREMENT IN THE ARTS AND SCIENCES (1991).
34. Finkin, supra note 1, at 172-73, 174-78.
35. Bryant Kearl, Remarks, 69 ACADEME 8a (1983).
36. Conference Report, Statement of the Wingspread Conference on Education of Tenured Faculty, 69 ACADEME 149 (1983).
37. Chait, The Future of Academic Tenure, supra note 2, at 1.
38. Id. at 3.
39. Finkin, supra note 1, at 195.
40. Id. at 22, 26.
41. Id. One can also argue that without job security, senior colleagues will be less likely to mentor young colleagues, who are now potential rivals for their job. Since mentoring is an im-portant
part of learning how to undertake the work of an academic, the demise of tenure would also make it more difficult and costly to train academics.
42. Id. at 124.
43. Id. at 125.
44. Id. at 107, 114.
45. Id. at 114.
46. Id. at 99, 115.
47. Id. at 61-62, 107, 114.
48. Id. at 107.
49. Id. at 106-10.
50. Id. at 106-7.
51. Id. at 107. The value of an academic's occupational training is "non-appropriable" be-cause, at least early in his or her career, if the institution does not pay him or her the value of
that knowledge the academic will go elsewhere to work. Accordingly, at least initially, the em-ployer cannot appropriate any of the value of the academic's training.
52. Id. at 108.
53. Id. at 20.
54. Id. There is indeed empirical evidence that academics accept lower wages in return for the job security afforded by tenure. RONALD EHRENBERG, ET. AL., Would Reducing Tenure
Probabilities Increase Faculty Salaries? National Bureau of Economic Research Working Paper No. 5150 (1995).
55. Finkin, supra note 1, at 101, 104-9.
56. Alternatives such as adjusting individual wages to individual productivies and accepting the costs of higher turnover by dismissing low productivity employees are rejected due to moni-toring
costs and effects on employee morale. Id. at 104-5.
57. Id. at 11.
58. Id. at 14.
59. Id. at 12.
60. Id. at 12, 89-90.
61. Id. at 17-19.
62. Id. at 22.
63. Id. at 186. Dean Rosovsky of Harvard has estimated faculty "dead wood" at under 2%. Id. Even David Breneman, a detractor of the current tenure system and a proponent of change,
estimates faculty "dead wood" at only 7.5%. Breneman, supra note 2, at 11.
64. See Indiana ex rel. Anderson v. Brand, 303 U. S. 95 (1938).
65. Query, what "grade" of academic would wish to work for such an institution?
66. Finkin, supra note 1, at 122, 174.
67. Id. at 106.
68. Id. at 118.
71. A public good is one that exhibits two characteristics: non-rival consumption and non-excludability. MIT DICTIONARY OF MODERN ECONOMICS 347 (David W. Pearce ed., 3rd ed.
1986). "Non-rival consumption" means that, if the good is consumed by one person, it can also provide benefits to other people at no additional cost. "Non-excludability" means that the pro-ducer
of the good is unable to exclude the other consumers from benefiting from the good. This later characteristic prevents private markets and bargaining from operating efficiently with re-spect
to public goods since consumers have little incentive to pay for the good, and too little of the good will be demanded and produced. With respect to tenure, the argument would be that
tenure makes good research and service possible and that, beyond the professor that undertakes this research or service, the public and fellow professors also benefit from this work and cannot
be excluded from these benefits. Accordingly, in bargaining for tenure, individual professors do not take account of the benefits of their research to the public, and individual professors have
incentive to free ride in the service of their colleagues, and thus have less than the efficient amount of incentive to bargain for tenure. A similar argument might also be made for the value
of tenure to teaching as a public good if, as seems likely, the general population benefits from a person's education in addition to the benefits that person directly receives or for which he or she
72. Finkin, supra note 1, at 7 (Van Alstyne), 22 (Machulp), 125 (Finkin).
73. It is an interesting question in itself as to why, if I am correct, service such as peer review and faculty governance is not more adequately compensated by institutions of higher
learning. My own hypothesis is that the problem arises from an information asymmetry that distorts wage payments in the academic labor market. Even though research, teaching and ser-vice
are all important to the mission of an academic department, the first is over compensated and the later two under compensated, relative to their actual worth to the department, because
good research is much more visible and readily evaluated by competing institutions and thus is the driving force behind competing wage offers. Of course, if service is under compensated in
academic institutions, for what ever reason, academics will tend to provide too little of this func-tion, or provide it in a perfunctory manner.
74. As proof of this assertion I point to the common phenomenon of protecting untenured faculty from "hot issues" in committee assignments.
75. Matthew W. Finkin, The Assault on Faculty Independence, 83 ACADEME 16, 20 (1997).
76. Breneman, supra note 2.
77. The wage premium Breneman suggests is 5%. Id. at 10.
78. Richard Chait, Thawing the Cold War Over Tenure: Why Academe Needs More Employ-ment
Options, CHRON. OF HIGHER EDUC., Feb. 7, 1997, at B4.
79. If, as I have previously asserted, supra note 73, and accompanying text, quality service is
already under compensated by colleges and universities. Allowing professors to individually bargain away tenure would exacerbate an already existing problem of too little quality service in
academia. See id.
80. Brenemen admits this problem with his proposal, as well as the problem of evaluating
faculty in the absence of tenured faculty. Breneman, supra note 2, at 12-14.
81. Finkin, supra note 1, at 22-26.
82. FOSTER R. DULLES, LABOR IN AMERICAN HISTORY 161, 373-74 (3rd. ed. 1966).
83. Britt Robson, Destroying the University to Save the University, in DEFENDING TENURE: A GUIDE FOR FRIENDS OF ACADEMIC FREEDOM (AAUP Task Force on Tenure 1997).