IV
The world over, wherever the principle of academic
freedom has been
understood and respected, it has been
closely tied to the concept of
tenure, since security
of employment is an essential precondition for
the
unhampered exercise of academic freedom. While
there are
variations on the general theme, the concept
of tenure which has taken root
in the United States
comes to this: after a teacher has served on a
faculty
for a limited, prescribed number of years in proba-
tionary status, he acquires a
permanent position.
The American Association of University Professors
has sought, during the
past half century, to standardize
the maximum duration of the probationary
period. The
influential 1940 Statement of
Principles, which it nego-
tiated with
the Association of American Colleges, and
which has been endorsed by over
sixty learned societies
since its adoption, prescribed that the maximum
dura-
tion of the probationary period
should be seven years.
That is to say, after a teacher has served on a
faculty
for seven years in probationary status, the institution
has an
obligation to make up its mind whether to let
him go or keep him
permanently by granting him
tenure. Tenure means that the teacher, having
been
found adequate by the institution during the proba-
tionary period, is now entitled to hold his position
until
retirement. It is recognized, however, that the concept
does not
mean that a tenured professor can never be
dismissed under any conceivable
circumstances. On the
contrary, it is agreed that the institution has a
right
to dismiss a tenured professor, but only if there is
adequate
cause for the dismissal, and only if adequate
cause is established by
procedures which satisfy the
rigorous demands of due process. In addition,
it is
recognized that an institution may find it necessary to
terminate a continuous appointment because of finan-
cial exigency—though it is insisted, in the 1940
State-
ment, that such
financial exigency “should be demon-
strably bona fide.”
The essence of the tenure concept, then, is the rec-
ognition of the right to serve until retirement, unless
there is
an earlier dismissal for an adequate reason
established through procedures
which measure up to
the requirements of justice by assuring the
individual
concerned the protection of due process. This means
that
before the administration of an institution makes
an unfavorable
recommendation to the governing
board, the faculty member must be given a
statement
of specific charges, served upon him long enough in
advance
so that he has adequate time to prepare his
defense. Following the service
of charges, he is entitled
to be heard, in the first instance, by a faculty
commit-
tee, preferably an elected
committee not directly con-
trolled by the
administration. Due process also assures
the individual all of the elements
of a fair hearing, such
as the right to be heard in his own defense, the
right
to counsel, the right to offer witnesses and to confront
and
cross-examine witnesses who appear against him,
and a right to a
stenographic record of all hearings.
Due process also demands that findings
of fact and the
ultimate decision should be based on the hearing rec-
ord.
In addition, the burden of proof to establish the
existence of adequate
cause for a dismissal is on those
who brought the charges, since the grant
of tenure
establishes a presumption of competence comparable
to the
presumption of innocence which defendants
enjoy in criminal cases. If the
faculty hearing commit-
tee decides in favor
of the involved faculty member,
the normal expectation is that the charges
will be
dropped. If the administration persists in bringing the
charges to the governing body for final action, then
that body is expected
to give the individual a hearing
embracing all of the basic elements of due
process.
When a faculty committee has made a decision favora-
ble to the individual, then an especially heavy
burden
of proof rests upon those who persist in pressing the
charges.
Thus, the real protection for the tenured professor,
so far as dismissal is
concerned, depends far more upon
the procedures available to him, than upon
any sub-
stantive definition of the term
academic freedom. Fur-
thermore, while the
rules of academic due process seek
to protect the professor against
injustice, they also
protect the institution and its administration from
act-
ing unjustly and making mistakes.
Speaking in the
wider context of governmental action, Justice Jackson
urged that it should not be overlooked that “due proc
ess of law is not for the sole benefit of an accused.
It is the
best insurance for the Government itself
against those blunders which leave
lasting stains on a
system of justice but which are bound to occur on
ex
parte consideration” (Shaughnessy v.
United States ex
rel. Mezei, 345 U.S. 206,
224-25 [1953], dissenting
opinion). When a professor is dismissed
arbitrarily,
without charges and a chance to be heard in a fair
proceeding, not only is the professor treated wrongly,
but the institution
deprives itself of the benefits and
guidance which would be secured by
following proper
procedures. An arbitrary dismissal also prevents the
academic community from having confidence in the
institution's course of
action, since there are bound to
be doubts about the acceptability of
administrative
decisions which were taken with faulty procedure. Due
process is regarded as vital for the academic commu-
nity, as it is in the general community, because it is
society's
best assurance that the action was taken justly.
