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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
  
  
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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


013

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.