In 2022, Florida passed legislation mandating five-year performance reviews for tenured state college and university faculty, and the regulations implementing the law are now going into effect. Purportedly claiming to ensure teaching quality and “accountability,” these policies introduce a new tool for educational censorship that threatens the common good that institutions of higher learning were designed to serve — academic freedom, and the constitutional rights of tenured faculty.
Americans are probably most familiar with the concept of lifetime tenure in the context of the federal judges and the U.S. Supreme Court. The nation’s founders recognized that an independent judiciary, free from the influence of prevailing political majorities, was vital to protect the rights of unpopular or excluded groups, and the integrity of the legal system. The independence of that system is essential to maintaining democracy.
The same logic applies to public education, which is also essential to democracy. One fundamental purpose of education is to benefit society through the advancement of knowledge. This can only be achieved if that knowledge can be pursued and shared without censorship or fear of retaliation. This is the essence of academic freedom. Grounded in the First Amendment, it protects both the right to teach, learn, and research; and particularly to teach, learn, and research politically unpopular subjects. In the current moment in Florida, with the governor and the Legislature openly committed to a reactionary ideological litmus test to remake the State University System (for an example, see the New College of Florida), tenure’s protection of academic freedom and the university itself is even more critical.
Lifetime tenure is essential to academic freedom and the independence of colleges and universities. It is the foundation for how they are organized. These institutions are more akin to partnerships, like law firms, rather than corporations. Those who have earned partner status, here the tenured faculty, set the direction and vision for the institution. Administrators are not corporate bosses, but respected faculty colleagues who take leave from their academic responsibilities to administer policies established by their colleagues.
Earning tenured status is neither a given nor easy. Professors seeking tenure must demonstrate their academic abilities in scholarship, teaching, research, and service to committees of their faculty peers, and then to faculty administrators. The process also requires longevity in the academy before a tenure application can even be considered. And make no mistake, tenured professors can be terminated for misconduct or incompetence. What tenure offers are due process obligations that put the burden of proof on the state to prove such claims. These provisions reduce the risk of political or discriminatory targeting that would violate academic freedom. In this way, tenure protects the collective academic integrity of the institution.
The new anti-tenure polices are intended to undermine that integrity. Peer review by faculty in the discipline is replaced by corporate-style performance evaluations by university administrators disconnected from the classroom. Limited (or no) opportunity to challenge those decisions inverts the burden of proof, requiring instructors to show why they should be retained, instead of making the university show why they should not. This reversal discounts both the rigorous nature of the tenure process and its essential role in preserving academic freedom.
These policies are also constitutionally suspect. The U.S. Constitution prohibits a state from making any law “impairing the obligation of contracts” (the Florida Constitution has identical language). The rights and protections of lifetime tenure (and the academic freedom that comes with it) are key substantive terms of the employment contracts of university professors and were relied upon by many of them when deciding to pursue education instead of potentially higher-earning opportunities. Altering these terms now, after the contract has been ratified, violates both the constitution and basic contract law principles.
Institutions of higher education are under political attack for anything perceived as critical of historical racial, economic or cultural norms. This makes protecting the academic freedom of those institutions, and the teachers and students that rely on them, more urgent than ever. Lifetime tenure is not a tool for educational indoctrination, but a shield against it. These new anti-tenure policies undermine higher education in the state and the people’s faith in it — which is exactly what they are designed to do.
Mark Dorosin and Areto Imoukhuede are professors in the Florida A&M University College of Law.
