A New Deal for Tenure

Tenure was not designed as a merit badge for research-intensive faculty. . . . Tenure was conceived as a right rather than a privilege.

—AAUP, Tenure and Teaching-Intensive Appointments, 2010

The 1940 Statement of Principles on Academic Freedom and Tenure, a joint statement of the AAUP and the Association of American Colleges (AAC, now the American Association of Colleges and Universities), has had a tremendous influence on the understanding of academic freedom in the United States. According to the AAUP report Policies on Academic Freedom, Dismissal for Cause, Financial Exigency, and Program Discontinuance, published in the 2020 Bulletin, three-quarters of four-year institutions with a tenure system base their academic freedom policies on the 1940 Statement, either by citing it or by incorporating its language. It is unlikely that institutional regulations of US institutions of higher education reference any other document with comparable frequency.

Yet, arguably, the authors of the 1940 Statement considered its changes to the era’s tenure system— rather than its contribution to the understanding of academic freedom—to be the statement’s most important, novel element. In the words of AAUP general secretary Ralph Himstead, addressing the AAUP’s governing Council in 1940, when negotiations with AAC were at a difficult juncture, the 1940 Statement was “just so much pious language” without the changes to the tenure system that the AAUP negotiators were championing. From today’s perspective, it is difficult to appreciate the revolutionary nature of the 1940 Statement’s conception of tenure, so completely have several of its elements been assimilated into the modern understanding of tenure. Nevertheless, today’s tenure system is not what the authors of the 1940 Statement had in mind. In fact, the problem they sought to solve—the widespread insecurity that existed in the academic profession during the Great Depression, when most full-time faculty members served on renewable term appointments, similar to what we now call “contingent appointments,” without any prospect of tenure—has reappeared. The percentage of tenured positions has continuously declined since reaching its zenith in the late 1960s. Perhaps it is time to revisit the meaning of tenure as defined in the 1940 Statement.

Before the Great Depression, academic tenure, understood as a continuous appointment that could be terminated only for cause, was largely identified with rank: full professors usually obtained tenure upon promotion to that rank, but those faculty members serving at lower ranks were usually not eligible for tenure regardless of their length of service. Moreover, promotions to higher ranks—and thus tenure—were usually possible only when vacancies occurred in those ranks. Floyd Reeves, one of the founders of what is now referred to as “institutional research,” recommended in 1929 best practices regarding the rank of instructor, then the common entry point to the profession: “Appointments to instructorships should always represent temporary appointments. . . . Promotions should be made only when the vacancies occur at the higher ranks or when additional funds available for salaries permit increases in the number of staff members employed at the higher ranks. . . . At the end of this temporary employment during which time staff members hold the rank of instructor, they may either be promoted, or dropped, or retained, if they wish to remain, at low salaries if their teaching is satisfactory but not excellent.”

Of course, the “wish to remain” was also dependent on opportunities for promotion. Once the Depression began to affect higher education, these opportunities became increasingly scarce. The plight of the instructor described in the above passage is strikingly similar to that of faculty members serving on contingent appointments today. At the AAUP’s 1937 annual meeting, University of Chicago physiology professor and AAUP president Anton Carlson summarized the growing opposition to the prevailing tenure system as follows:

When we remember that a man and a woman usually have reached the age of 40 or 45 before the rank of full professor in the university is attained, it seems clear . . . that unless tenure under reasonable safeguards is extended to the lower ranks in the faculty, the principle of tenure as basic to academic freedom becomes a mockery and a delusion. I can ascribe no other meaning to the procedure under which an instructor, assistant professor, and associate professor labors in the university for half or nearly half of his university life without enjoying the element of tenure which is necessary for that freedom, necessary for the highest attainment in his teaching and in his research.

Several features of the Depression created wide dissatisfaction with the tenure system. First, the 1930s witnessed several academic freedom cases over political activities of faculty members at a level of notoriety not seen since the AAUP’s founding in 1915. These cases reinforced the need for tenure as a mechanism to protect academic freedom and demonstrated the problem caused by the restriction of tenure to the upper ranks. Second, the Depression put a significant strain on the existing tenure system because opportunities for promotion to higher ranks—and with them opportunities to acquire tenure—had suddenly dried up because of the collapse of the economy. The latter development left a large percentage of faculty members stranded in positions ineligible for tenure. According to a study conducted in 1935–36 by the AAUP’s Committee Y on Effect of Depression and Recovery on Higher Education, 30 percent of faculty members were full professors, meaning that about 70 percent served mainly in contingent positions, since few institutions granted tenure at ranks below full professor.

As a result of widespread discontent with the status quo, new approaches to tenure emerged. Henry Wriston, president of Brown University and chair of the AAC committee that negotiated the 1940 Statement with representatives of the AAUP, observed in a letter to the AAC executive director while the negotiations were ongoing, “A new theory, which I call the acquisition of tenure by adverse possession, has gained currency during the last seven or eight years. The man’s equity in his job, which arises because of continuing appointment, which arises because his salary was increased or his rank was changed—that is a new feature which has risen to great sensitiveness” (emphasis added).

“Adverse possession” is a legal concept that refers to a person’s acquisition of another’s property, usually land, by claiming de facto ownership over it—for example, by using it, occupying it, or building a fence around it. The concept was also the perfect metaphor for the understanding of tenure that the 1940 Statement enshrined: rather than being attained through promotion in rank, tenure was to be acquired automatically through length of probationary service. But while a new theory was emerging, what was missing was a prescribed limit on how many years of such service would result in the automatic acquisition of tenure. Ideally, the AAUP and AAC would agree on such a maximum number of years in order to give force to claims by faculty members that they had obtained de facto tenure through length of service.

Following lengthy deliberations and some failed attempts, the AAUP and AAC did agree on such a minimum. According to the 1940 Statement, “After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure. . . . Beginning with appointment to the rank of full-time instructor or a higher rank, the probationary period should not exceed seven years, including within this period full-time service in all institutions of higher education.”

The Statement is saying that, regardless of faculty members’ rank, once they have been reappointed beyond the seventh year, they have acquired tenure automatically, as a right rather than as a privilege granted by the administration or governing board. The main purpose of the Statement when it was issued in 1940 was to extend the protections of tenure to the entire academic profession regardless of rank—not just to a small class of full professors—by providing a foundation for a “New Deal” for tenure.

Despite the subsequent inclusion of the 1940 Statement in many faculty handbooks, that document’s vision of a new tenure system—specifically, its conception of how tenure should be acquired—did not achieve widespread acceptance in American higher education. To be sure, the 1940 Statement has had a lasting influence: few institutions formally tie tenure to rank (even though at many institutions faculty members are considered for tenure and promotion at the same time), and most institutions observe a probationary period of seven years. But the tenure system has since become identified with a series of evaluations during the probationary period, frequently focusing on research accomplishments, that culminate in a rigorous review in the sixth year followed by a decision on retention. Such a system was not what the framers of the 1940 Statement had in mind. The AAUP continues to insist that all full-time faculty members, regardless of whether they serve on tenure-track appointments, are entitled to tenure after seven years of service. Nevertheless, most colleges and universities today grant tenure only to those faculty members who successfully undergo extensive evaluation during the probationary period and only by explicit action of the administration or governing board.

What accounts for the failure of the 1940 Statement’s vision of tenure to take hold? It is not possible here to provide a full account of the history of the US tenure system. But it is well worth noting that, during the same period in which the AAUP and AAC were negotiating the 1940 Statement, Harvard University proposed an “up-or-out” tenure system that—regrettably, in my view—came to serve as the model for tenure acquisition that has since made its way to academic institutions of every type. Although, as the epigraph to this article observes, “tenure was not designed as a merit badge for research-intensive faculty,” that is what it has quite frequently become. The close identification of tenure with research has damaged the understanding of academic freedom. As the AAUP’s 2004 statement on Professors of Practice observed, the view that only research scholars should benefit from tenure protections “fails to appreciate the need for teachers to be free to express themselves fully and frankly in the classroom.” The statement continues, “Freedom in teaching, no less than freedom in research, suffers if faculty, subject to periodic review and serving in positions renewable indefinitely at the pleasure of the administration, fear losing their positions because their opinions are deemed too controversial. Nor is the freedom of faculty to speak their minds without fear of reprisal limited to what they might say in the classroom. Their academic freedom encompasses the right to express opinions on all manner of issues having to do with their institution and its policies and practices.”

The tenure system has developed over the last eighty years in a way that has recreated the status quo ante: once again, a large number of full-time faculty members, now on “non-tenure-track appointments,” serve indefinitely without the protections of tenure, which is precisely the situation that the 1940 Statement sought to end.

A return to the 1940 Statement’s conception of tenure is well worth pondering. Some institutions have introduced a tenure track for faculty members whose appointments are primarily or exclusively teaching-focused. To that end, the AAUP’s Tenure and Teaching-Intensive Appointments made the following recommendations:

• The best practice for institutions of all types is to convert the status of contingent appointments to appointments eligible for tenure with only minor changes in job description.
• Many faculty members serving part time might prefer full-time employment. Stabilizing this group means consolidating part-time work into tenure-eligible, fulltime, and usually teaching-intensive positions.
• For faculty who wish to remain in the profession on a part-time basis over the long term, we recommend as best practice fractional positions, including fully proportional pay, that are eligible for tenure and benefits, with proportional expectations for service and professional development.

The time may have come for another New Deal for tenure that embraces the provisions of the 1940 Statement and the above recommendations.

Further Reading

Metzger, Walter P. “The 1940 Statement of Principles on Academic Freedom and Tenure.” Law and Contemporary Problems 53 (Summer 1990): 3–77.

Teichgraeber, Richard F., III, “The Arrival of ‘Up-or-Out’ Tenure: James B. Conant and the ‘Tempest at Harvard,’ 1936–1939.” In Shaping the American Faculty. Perspectives on the History of Higher Education, edited by Roger L. Geiger, vol. 31, 79–112. New York: Routledge, 2015.

Tiede, Hans-Joerg. “The Front Rank: On Tenure and the Role of the Faculty in the Defense of Academic Freedom.” History of Education Quarterly 58 (August 2018): 441–47.

Hans-Joerg Tiede is director of the AAUP's Department of Research and the author of University Reform: The Founding of the American Association of University Professors. His email address is [email protected].