To Tenure, or to Not Tenure – That Is the Question

Tenure is one of those sticky academic topics. Those on the outside of the acadame wonder why anyone would or should be granted a “job for life.” On the inside, the question was not “if” we should have tenure, but “who.” Throughout the entirety of my career as an Academic Law Librarian and Legal Research Professor, my colleagues and I debated with the question of whether or not we should be (1) tenure track and, if so, (2) considered part of the law school faculty and invited to participate in the governance of the school.

At the time, I held the opinion that “every professional person in a law school and interacts with students or contributes to the intellectual life of a law school should have tenure.” Teaching faculty, the Academic Success Program, Clinicians, LRW faculty and yes, law librarians. Even the Technical Services ones (catalogers, systems librarians, collection development librarians, etc.) – you know, the ones squirreled away in the back of the library that you never see. And if you don’t think they contribute to the intellectual life of a law school from their offices hidden in the back of the library, we’ll just organize the books by colour and let the dean decide what databases to buy and call it a day. Good luck with that!

I had several reasons for this opinion. One, the unequal distribution of tenure among people with one or more graduate degrees and who interacted with students and contributed to the intellectual life of the law school created a caste system. A caste system that hampered, I believe, the quality of education that students received, as shown by the increasingly limited time that legal research and writing is given in course schedules. It was also a caste system that the students are able to pick up on and translate to the importance of the subject taught by non-tenure track faculty. The thought process I often overheard was “if the law school doesn’t value LRW, why should I?”

The second reason for my opinion was that these positions all require the protection that the concept of “intellectual freedom” covers. These individuals may not need intellectual freedom for a journal article arguing a controversial opinion – although it definitely could take that form. (Not to mention that the expectation of scholarship and thus the acceptance of blocking out time in one’s schedule to create it is a nice bonus of tenure-track positions.) These members of the law school community need the protection to cancel subscriptions (even if the dean uses it! Especially if the dean is the only user!) or take on unpopular cases in their clinics or writing a blog post where a big player – for example, US News and World Report – is called out by a career placement officer for their ranking methodology. That staff member should be able to do it and keep that blog post up without worrying that the dean will punish them out of fear of USNWR retribution.

(Admittedly, this analogy is flawed because obviously USNWR doesn’t give a good goddamn what anyone thinks about their methodology and knows that the legal academe has Stockholm Syndrome with regards to their annual law school rankings. So let’s say LRW professor fails the child of a major law school donor. There. That’s more grounded in reality.)

Now that I’ve been away from the academe for a few years, my opinion on tenure has changed. And for the same reasons, but with different interpretation of the facts. I now think NO ONE in the legal academe should have tenure, with the possible exception of the dean who must deal with university officials and, thus, needs the protections for intellectual output and from the perception of unequal status from the other deans in the university. I mean, it’s bad enough that they all have PhD’s and our dean only has a JD…we should at least throw him or her a bone and grant tenure.

In my argument against tenure, I’m not going to rely up on the trope of “the law professor who gets tenure and then spends the rest of his or her career in their office and doesn’t contribute any intellectual object or service to the school ever again.” Although to be sure I’ve seen examples of this professor in the wild, as I’m sure anyone who’s spent time in the Ivory Tower has. But I’ve never found this argument to hold water. Most academics I know are extremely dedicated and hardworking people and a few bad apples shouldn’t spoil the whole bunch.

Much like before, I take issue with the caste system created by the tenure system. Don’t get me wrong – I think law school clinicians and even adjuncts are extremely talented and valuable members of the law school community. But I do wonder if the lack of status and lower pay (if they are paid at all!) is keeping other extremely qualified individuals from crossing the threshold of a law school. In theory, law faculty are paid the high salaries that they are in order to compete with the Big Law job market. (The fact that Big Law jobs have all but disappeared and most law faculty have never practiced is not taken into consideration.) Why shouldn’t an adjunct make the same hourly rate as they do in practice? Why does the academe expect the Practice World to essentially donate time to do law schools’ job?

I have also come to realize that while tenure protects intellectual freedom, it just as often hampers or inhibits it. In my current position, I introduce law faculty to new educational tools and teaching concepts. (e.g. Flipped Classrooms) Time and time again I’m told, “I’d love to do [X], but I have to work on an article…” I will never understand why legal scholarship, with all of its flaws, is the gold standard measure of academic output and faculty quality. The tenure process keeps faculty from concentrating their efforts on their teaching or creating useful yet not scholarly work like casebooks or even, yes, computer programs.

So what do you think? My opinion has changed so radically on this topic in 3 years that I’m very interested to read other opinions and see if it will swing back. In the meantime, I’m just going to sit here and hope I don’t get fired for this blog post…


  1. With all due respect, tenure is based on the proposition that the tenured professor is not threatened with unemployment when voicing truth or opinions which are critical of conventional wisdom. It does seem to be a fair assessment that this privilege, which as a rule most working people do not have, is not being used by the tenured. In cases where tenure has been the issue it is remarkable how conventional their thinking has been. The battleground may be elsewhere right now: at the stage where tenure is granted, and not after. If this is the case, it should be a cause for concern. Judicial independence is one of the few areas with a comparable system, and again it is remarkable how utterly conventional appointments are made in common law countries. Hardly a modicum of real dissent.