Stanley Fish at the New York Times is arguing that university professors ought to be subjected to more stringent performance requirements, and should not be protected for reasons of academic freedom. He supports this contention by discussing the misbehavior of an a Canadian professor named Denis Rancourt.
Fish's column this week argues that there is no right to academic freedom that justifies such protections, and he cites court cases where judges have refused to find that there is a testimonial privilege for academics (similar to the privilege protecting attorney-client confidentiality, or the marital privilege). But professors like Rancourt are difficult to terminate because universities enter complicated employment agreements with academics that protect their positions.
Fish points out that there is no constitutional protection for academic behavior, and argues that professors ought not to have autonomy from the 'goals of the enterprise.'
But the degree of control a school has over its faculty is precisely the question that is answered by the existence of tenure.
Fish is right that tenure isn’t a constitutional right. But those professional norms are formalized in contractual agreements, and institutions enter those binding agreements voluntarily, at their discretion. Tenure is a special kind of employee benefit. Rancourt is difficult to dislodge from his position not because he has some kind of special Constitutional protection, but because the university has entered into a contract with him that makes him extremely difficult to fire.
Whether the needs of academic freedom require contractual protections so powerful that they make it impossible to dislodge a faculty member who goes insane is an interesting question, but even if they regret the terms of their agreement with Rancourt, they are bound nonetheless.
Universities are sophisticated negotiators, and their tenure review process provides for intense scrutiny of candidates for tenured positions. There’s no reason why their promises ought to be less binding than anyone else’s.
The tenured professor, similarly, is not beholden to the ‘goals of the enterprise,’ because he has not agreed to be. If that was what universities wanted from professors, they would negotiate different terms into their employment agreements.
The agreements presuppose that the ‘goals of the enterprise’ are suspect, and can be influenced in questionable ways by politically powerful actors. Professors accordingly negotiate for substantial autonomy and job security, and universities agree to grant it. They provide the secretary and the office space and the salary and the tenure protections as consideration in exchange for the professor’s affiliation with the university.
And there certainly is a place for academic freedom; for example, if a donor or a coalition of donors wanted to force a school’s biology department to provide equal time to creationism, tenure would protect biology professors who refused to teach junk science.