I recently attended a faculty conference where any mention of the word “tenure” was met with a cynical chuckle and someone saying, “Tenure, ha!  It barely exists anymore!”  As one who sits off-campus looking in on the Academy the sentiment jolted me.  After all, tenure and the Academy go together like bread and butter.  But an article in the Chronicle of Higher Education demonstrates that my conference friends were not too radical in their retort.  In fact, the Chronicle reports that tenure may in fact be dead—or is at least dying.  And while this news troubles those looking for job security, it has also raised questions about whether professors are free to say what they want inside and outside the classroom.

The Chronicle reports the collegiate trend against tenure:

Over just three decades, the proportion of college instructors who are tenured or on the tenure track plummeted: from 57 percent in 1975 to 31 percent in 2007. The new report is expected to show that that proportion fell even further in 2009. If you add graduate teaching assistants to the mix, those with some kind of tenure status represent a mere quarter of all instructors.

“What’s so bad about the loss of tenure?” you ask.  “All it means is that professors are now employed at-will like the rest of us.”  But here is what worries the faculty:

For starters, some observers say that college faculties are being filled with people who may be less willing to speak their minds: contingent instructors, usually working on short-term contracts. Indeed, the American Association of University Professors says instructors need tenure to guarantee that they can say controversial things inside and outside the classroom without being fired.

This is cause for concern.  While tenure can entrench some wacky professors (thinking of the engineering professor at my alma mater who was an outspoken Holocaust denier), it also protects the lion’s share of professors who want to conduct cutting edge research and propose new theories without fear of government or institutional censorship.  Without tenure, professors will feel less free.  So where can they turn after tenure dies?

They can start with the First Amendment.  For years the Supreme Court lauded the important role the Academy plays in modern society.  In Keyishian v. Board of Regents, the Court said:

The essentiality of freedom in the community of American universities is almost self-evident.  No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust.  Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

The Court was onto something here.  The lifeblood of our national intellectual stamina is the training of our children and young adults through rigorous study and debate.  Though this blog has amply criticized the many faults of the modern public university, we recognize that the university is still a center of training and new discovery.  Thus, only a few years ago in Garcetti v. Ceballos, the Supreme Court reaffirmed its understanding of the Academy by specifically exempting it from a devastating decision that removed the ability of public employees to speak freely.  With that the Court renewed its commitment to protect free thought in higher education.

Yet some courts are attempting to erode those protections.  As my colleague, Travis Barham, wrote recently, “a federal district court in North Carolina ruled that Dr. Mike Adams’ nationally syndicated columns were not protected by the First Amendment.”  The court based its decision, in part, on deference to the university’s administration and decision making process.  It seems that when faculty need the First Amendment most, courts are increasingly—and wrongly—deferential to college administrators.  The Supreme Court’s decision in Christian Legal Society v. Martinez is just the latest example.

After tenure, where do faculty turn for the assurance that they can speak freely on campus?  For now, the First Amendment remains their friend.  But unless more professors like Dr. Adams stand up for their rights, after tenure, faculty may have nowhere to turn.