Academic Freedom and Tenure

Source: American Association of University Professors
Colorado Conference on Academic Freedom and Tenure

What is Tenure?
After a full-time faculty member completes a period of probation at the University of Colorado, he or she is either granted tenure or given a terminal appointment for the next academic year. With the conferral of tenure, the faculty member holds a continuing appointment, and the burden shifts to the institution to show why the faculty member should be dismissed. Tenure presumes the continuing fitness of, and need for, the faculty member. The presumption is rebuttable, but only by the administration's demonstrating in a hearing of record before a body of academic peers, as required by the university's and Board of Regents' official policies, that adequate cause exists for taking action against the faculty member.   

What is the Purpose of Tenure?
Tenure is meant to attract the intellectually gifted to academic life, to provide a reasonable degree of economic security for those who join the academic profession, and, most importantly, to protect academic freedom. Without the protections of tenure, it would be seriously difficult for an administration or governing board, especially at a public institution, to resist a strong and vociferous effort to remove a controversial faculty member. The history of higher education in the United States is replete with examples of scholars — for instance, those looking for connections between race and intelligence, or studying the sexual practices of youth, or being outspokenly critical of U.S. foreign policy, or linking abortion with murder—whose continuance at their institution has been possible because of the rules of tenure.

What is Academic Freedom?
Academic freedom is the right of faculty members to express their views without fear of retaliation or retribution even if what they say or write is offensive to many. Faculty should be free to criticize accepted theories or widely held beliefs, however unpopular their criticism. "On a campus that is free and open," the American Association of University Professors has stated, "no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed." Academic freedom is not a license for unbridled speech. But a judgment about whether a tenured faculty member, because of his speech or writings, is unfit to continue must be made by members of the academic profession on the basis of the standards of the profession.

Does the First Amendment Protect the Academic Freedom of Professors?
The U.S. Supreme Court has repeatedly held that academic freedom is a First Amendment right of professors in public colleges and universities.(1) So, too, have federal appellate courts.(2) These decisions have encompassed both teaching and research. "A professor's rights to academic freedom and freedom of expression are paramount in the academic setting," one court has observed. At the same time, the courts recognize, as does the academic community, that academic freedom is not absolute. One consideration in judging a faculty member's speech is whether it is germane to the individual's teaching or research.(3) That judgment within the academic community should be made by a faculty committee that affords the essential safeguards of academic due process.          

(1) For example, Sweezy v. New Hampshire, 354 U.S. 234 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985); Univ. of Wisconsin v Southworth, 529 U.S. 217 (2000).

(2) For example,.  Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982); United States v. Microsoft, 162 F.3d 708 (1st Cir. 1998); Vanderhurst v. Colo. Mountain College, 208 F.3d 908, 913 (10th Cir. 2000).

(3) For court cases, see Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001); Bonnell v. Lorenzo, 241 F.3d  800 (6th Cir.), cert. denied, 534 U.S. 951 (2001); Kracunas v. Iona College , 119 F.3d 80 (2d Cir. 1997).  

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