Justifying tenure requirements-an analogy

Justifications (and critiques) of faculty tenure often proceed from the perspective of an individual faculty member but fail to emphasize the institutional and public values furthered through the insulation that tenure provides. Although I'm a long-time (and long-tenured) member of a law school faculty, I've always thought that debates over the merits of tenure that focus on an individual's interests miss the point. Surely faculty expressive freedom, and the new ideas and debates it generates and provokes, has public value and is integral to a university's purposes. More recently, I've come–via an analogy–to think of tenure as a constraint on decisions that may be made, whether by university administrators or by self-governing groups of faculty. Such decisions might, for example, effect a shift in research methodology, pedagogy, or otherwise, by non-renewing the contracts of non-compliant faculty. I'm assuming decisions made in good faith and rationally in light of what the present seems to demand. Tenure, of course, operates as a powerful constraint against implementation through a number of substantive and procedural requirements I won't detail here. The analogy that comes to mind is an art museum. Even in the absence of legally binding terms (such as the restrictions in a gift), art museums operate subject to a significant constrainst against deaccessioning–whether by sale or otherwise–objects accessioned into the museum's collection, unless the proceeds are used to acquire other art objects or serve the needs of the museum's remaining collection. Consider the firestorm of protests a couple of years ago when the trustees of Brandeis University decided to deaccession the collection of the university's Rose art museum and use the proceeds for general university purposes. The trustees backtracked considerably. In the museum context, firewalling off the art from the demands of the museum's operating budget helps assure that the museum's purposes are foremost. These are collecting and displaying art, not operating as an art dealer. Additionally, tastes change. Art that's presently disfavored and thus deaccessioned is gone. And if the proceeds from deaccessioning are used for operating purposes, the long-term interests of the museum's collection have been sacrificed to the short-term immediacies of operational needs. The constraint applicable to museums reinforces fidelity to the museum's purposes and helps guard against a form of hubris that over-weighs perceived present interests against the longer term. It does so in an organizational context–not-for-profit entities–that's notorious for weak after-the fact sanctions by imposing a strong ex-ante constraint on the scope of acceptable decisions. I suggest faculty tenure operates likewise. It helps guard against hubris, including our own were we collectively empowered to do what we think should be done regarding certain colleagues! It also reinforces the point that a university is a non-profit enterprise devoted to teaching, research, and service to the public. Why? These activities constitute the faculty's work. Additionally, well-run museums aware of the constraint against deaccessioning exercise care and caution in adding to their collections, just as universities should exercise caution in awarding tenure. To be sure, the analogy is not perfect. People are not art objects (!) and the interests served by tenure would not be met were all savings from "deaccessioning" faculty used to "acquire" other faculty. But just as a museum's collection is integral to, indeed constitutive of, the museum, so is a university's faculty.

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