Tenure has its purpose, but shouldn’t last a lifetime

Tenure entrenches academics in their jobs. While it’s a bulwark of academic freedom, tenure also shields those who are not currently earning their keep, as well as many who never did. The current system stymies innovation, most clearly in the area of hiring new faculty. 

I call for changing it.

The first point here is that tenure was never designed to provide a lifetime sinecure. Here’s a little background. 

Formalized 100 years ago to protect against encroachments on academic freedom, the tenure system said nothing about retirement. Congress, however, intruded into the area in the 1970s. In an early version of the Age Discrimination in Employment Act (ADEA), covered employees, which included faculty, could not be subject to mandatory rules before age 70. 

By the mid-1980s, complete abolition of mandatory retirement was being seriously debated. Fearing implications for universities, the American Council on Education lobbied against the elimination of mandatory retirement in higher education.

Perhaps because the National Research Council’s Committee on Mandatory Retirement in Higher Education predicted that faculty at all but research universities would leave by age 70, Congress struck a balance in amending the law. It prohibited mandatory retirement generally, but allowed universities to continue the practice until 1994. 

In an environment characterized by increased life expectancy, this meant that faculty could have much longer careers.   

It should not be surprising that in the absence of mandatory retirement (and in our uncertain economic climate), professors are sticking around longer than ever. The average age of tenured male law professors in 2011 was 57; that of female law professors 52. A report on the Harvard Arts and Sciences faculty shows that between 1992 and 2006 the percentage of those over age 70 grew from 0% to 9.6%. 

This aging trend will probably accelerate and it means that fewer young people will be able to get academic jobs.

As a result, many schools are resorting to buyouts of senior faculty. Information on the details and overall cost of these retirement programs is limited, and one can understand why universities might be reluctant to inform alums that their contributions are being used for buyouts. 

Some information on public universities, however, has come out. At the University of Nebraska- Lincoln, 100 faculty members retired after a 2010 buyout offer, at a total cost of $11,000,000. Another buyout was proposed there late last year. The University of Missouri recently made a similar offer, which 110 faculty members took; those buyouts will cost $17,700,000.  

In those deals, the University of Nebraska and the University of Missouri were offering a payout of 90% and 150% of salary, respectively. Some law schools have offered senior faculty twice their annual salary. At George Washington University Law School, one faculty member recently retired with severance payment of $523,000. 

The end result of buyout escalation may not be in sight. Less than half of the eligible Missouri faculty took the bait.   

A university could, in theory, cut seniors’ pay as they age. That, however, if done across the board, would violate the ADEA. Such action might, additionally, violate tenure rules. Tenure implies some protection of salary, so if salary can be cut to a class of faculty, tenure becomes meaningless. 

The policy problem is that we senior professors, no less than other professionals, lose our mojo as we age. Some of us can no longer do the job, though, curiously, there seems to be no firm evidence that overall we are writing less or are less effective teachers. Since “cause,” must be shown under current tenure principles before a professor can be terminated, there is little that administrators can do. 

A dean could, of course, require a faculty member to publish an article to keep his or her job. Aside from the fact that an article written under such duress is unlikely to be useful, the dean might have to show in subsequent age discrimination litigation that all other faculty members were subject to the same requirement. Therefore, that approach isn’t likely to succeed.

In any event, revoking tenure without cause can be based only on “financial exigency.” It is not clear, however, exactly what that means, and making the claim might be too risky in the marketplace.       

This brings me to my suggestion, which is that colleges and universities adopt a sunset provision for tenure.  

At age 70, for example, faculty members would lose tenure as a matter of contract. The dean would then decide either to continue the professor’s appointment or to give notice of non-reappointment. A negative decision would not have to be preceded by a finding of “cause.” 

Knowing that their careers might end at 70, academics who did not want to fully retire would be encouraged to remain as active and productive as possible to reduce the likelihood of non-reappointment. They would also have strong incentives to better husband their resources in their final career years and to develop other marketable skills in case the dean’s decision is not to reappoint.

But to achieve this result, most colleges and universities would have to change their rules. So would the American Association of University Professors, which originated the tenure rules that most universities have adopted wholesale. 

Another problem is that contractual abolition of tenure for professors at age 70 might be held to violate ADEA. To head that off, Congress should revise the law. 

Making these changes would liberate many millions of dollars. Highly paid senior faculty would become less dominant, and our universities could afford to hire more young scholars. That would be a positive step.