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Academic tenure in the Universities Act, 1997

DVD cover for the movie 'Tenure', via Amazon width=:

the very word connotes safety, security, and a sense that you have made it in academia. But is the system really all it is cracked up to be, or is it lumbering into the world of 21st century academia like a dinosaur that hasn’t heard it is supposed to be extinct?

In earlier posts on this blog, I have looked at various issues relating to the various legal protections of and at the concomitant concept of academic tenure as a matter of principle. In today’s post, I want to look at it as a matter of law.

The starting point is the Universities Act, 1997. Section 25(6) (also here) of the Act provides (with added emphasis):

A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.

The Statutes of a university constitute its basic law, and section 3 of the 1997 Act (also here) provides that “officer[s]” include “permanent, full-time member[s] of the academic staff of the university”. Hence, section 25(6) effectively requires that each university’s statutes must only specify disciplinary procedures leading to the suspension or dismissal for their employees, but must also provide for tenure of full-time members of academic staff. This rider to section 25(6) is very important. Dismissal procedures must be set out in universities’ fundamental constitutional documents, and where such procedures affect full-time members of the academic staff, they must specifically provide for tenure. This is a strong legislative commitment to the principle of academic tenure. As with the Act’s comcomitant protection of academic freedom, there are very few similar general legislative provisions elsewhere. In this respect at least, Irish legislation is particularly progressive, and – as Prof Jim McKernan, formerly of UCD and UL, and now of the College of Education in East Carolina University, has recently argued on Ninth Level Ireland – these freedoms must be jealously guarded and zealously protected:

Academic Freedom and Tenure: Necessary Rights for Irish Academics

Academic freedom is the right of the faculty member to select one’s materials, methods, pedagogy and points of view in teaching one’s discipline. … Academic freedom is an absolute necessity for a democratic society. … Faculty need to be free of the constraints of censorship and interference in the conduct of their duties by the institution or other agents and agencies in the community.

… Faculty members, after a probationary period have a property right to their position and cannot be removed barring ‘just cause’. Tenure does not guarantee a post for life. When I was first appointed at UCD in 1981 there was one condition in my contract letter for removal-being guilty of ‘gross moral turpitude’. Irish academics had real tenure in those days. I do not know if new conditions for removal of tenured faculty have been introduced. … Tenure really means that one ‘owns their position’ and the right to return to that position year after year after the probationary period. … Tenure secures a working community of scholars based on accepted academic values and aims, and it guarantees that a person cannot be dismissed from that community without due process and without consideration based on well established objective academic criteria. As it turns out, the truth is not always popular, especially within circles of power and wealth. Remove the system of tenure and we shall witness a ‘Flight of the Dons’. …

The answer to Jim’s question in bold about the current state of tenure in Irish universities is in three parts. The first is section 25(6) of the 1997 Act. However, the Act does not supply a definition of tenure in this context, and the Supreme Court has on two occasions declined to fill that gap. For example, in Fanning v UCC [2008] IESC 59, section 25(6) was cited, but Kearns J’s judgment turned on the application of section 25(8). In Cahill v DCU [2007] IEHC 20 (09 February 2007), aff’d [2009] IESC 80 (09 December 2009), the issue of tenure in the 1997 Act was debated at first instance and on appeal, but the case was decided on other grounds in both courts. In the High Court, Clarke J decided that the dismissal did not not occur in accordance with procedures specified in a statute, as required by the earlier part of s25(6), but he nevertheless went on to consider the meaning of the word “tenure” in the later part of s25(6). In his view, that term

… must go further than a mere specification of the terms of employment. … If the obligation to provide for tenure merely meant, as argued by DCU, an obligation to provide for the terms and conditions of employment so far as the length of that employment was concerned, then it would be a redundant obligation as that obligation is already covered by subsection (3) [of section 25 of the 1997 Act]. It seems to me, therefore, that the Oireachtas must have used the term “tenure” to mean something more than simply delineating terms and conditions as to the length of employment.

I am, therefore, satisfied that the term “tenure” brings with it an obligation to give a greater degree of permanency to the status of officers of a university, than would be the case in circumstances where, as a matter of contract, such officers could have their contract terminated on three months notice. I am, therefore, also satisfied that the purported specification by DCU in Statute No. 3 of tenure by reference to contracts of employment which, on the facts, provide for termination on three months notice, was an invalid exercise of the undoubted entitlement of the university to specify tenure. Precisely what limitations there may be on removal from office by virtue of the meaning of the term “tenure” is a matter which I will leave for consideration to a case in which the issue specifically arises.

So, in Clarke J’s view, tenure means something more than simply delineating terms and conditions as to the length of employment, and brings with it a greater degree of permanency for full-time academics, but he declined to specify what that “something more” or “greater degree of permanency” might be. Geoghegan J declined even to go that far:

… the word “tenure” has different meanings and different connotations partly depending on its context and partly depending on the particular understanding as usually given to it within the country in which it is used. “Tenure” has a very definite meaning in the USA. It more or less equates with permanency in a university post and it is widely sought after. The same word does not necessarily, however, have that meaning in this jurisdiction. It can have different meanings, one of them being merely the period of time for which the office can be held or the method of calculating that period. These kinds of problems would usually arise in a case of some alleged misbehaviour on the part of a professor or a lecturer in the way he or she carried out his or her duties. This is not such a case and unless it was absolutely necessary to do so, I do not think it desirable to go beyond the general right to fair procedures which is required … prior to a purported termination of the contract of employment.

… it seems clear both from the Act and the statute and at any rate from the fact that the appellant was clearly an officer of the university, that an obligation to afford him fair procedures before dismissal must be implied. The fair procedure that was required here was a warning that a notice of termination would follow if within a specified reasonable period the appellant did not clarify his position as to whether or when he was leaving the university. That was not done. That failure is sufficient to determine the case in favour of the respondent but it must be said that his position is less than fully meritorious.

There are at least three problems with this passage. First, there is no opposition between tenure and fair procedures: instead, tenure requires fair procedures in any decision to terminate an academic contract of employment. Second, it rather overstates the position in the US. It is true that the US Supreme Court’s protection of academic freedom has required consequential judicial protection of tenure (see, in particular Pickering v Board of Education 391 US 563 (1968); Board of Regents of State Colleges v Roth 408 US 564 (1972); Perry v Sindermann 408 US 593 (1972)). However, as stressed in my earlier post, the right of tenure is not an absolute (see, eg, Garcetti v Ceballos 547 US 410 (2006)). Hence, in the widely-cited Jimenez v Almodovar 650 F2d 363 (1981), the Court of Appeals for the First Circuit held that tenure does not prevent universities from unavoidably terminating the employment of an academic member of staff when the position is eliminated as part of a change in academic program, providing there is no arbitrary or discriminatory action. Third, it is unpardonable that the Court in Cahill did not seek to give positive content to the concept of tenure in the 1997 Act; making decisions is the function of the court; and declining to do leaves those of us subject to the terms of the Act in a limbo.

Without the guidance of the Supreme Court, various universities have provided their own definitions; and the second part of the answer to Jim’s question lies in the extent to which each university’s Statutes actually give effect to section 25(6) of the 1997 Act and protect tenure. In an earlier post, I have already discussed the extent to which the Chapter on Academic Staff (pdf) in TCD’s 2010 Statutes protect tenure. The relevant provisions of UCC’s Statutes are rather similar:

F.3. Tenure and continuance in service.

F.3.a. Officers. Each officer of the University who has successfully completed their period of establishment shall, unless otherwise provided in any contract of such officer or governing the holding of such office and subject to any statute or other law concerning such office, hold office until s/he attains the age for the time being prescribed in law or agreed in contract as the ordinary retirement age for the holder of such office, unless:

  1. s/he retires from office earlier, resigns, dies, or becomes incapable by reason of physical or mental infirmity from continuing in office before attaining such age; or
  2. s/he is dismissed in accordance with procedures specified in a statute of the University before attaining such age.

For this purpose, an “officer” is the President, a permanent full-time member of the academic staff of the University, or any other employee whose position the Governing Body has for the time being determined is an office of the University. The period of establishment referred to relates only to Senior Lecturers and Lecturers, and shall be two years.

UCD’s more laconic provisions are to be found in Statute 6, Chapter 20, section 3; UL’s provisions are to be found in Statute No 4 (.pdf), section 2; but it doesn’t look as if DCU have yet amended the provisions which were found lacking in Cahill. NUI Maynooths’s statutes seem to be for local access only; I wasn’t able to find NUI Galway’s Statutes on their website; and the word “tenure” doesn’t seem to appear in their Academic Disciplinary Procedures (pdf). If anyone can fill in the gaps here, I’d be very grateful.

In my earlier post, by reference to the provisions of TCD’s Statutes, I argued that academic tenure is the right of a full-time academic not to be arbitrarily dismissed, so that it functions as a guarantee of employment until retirement age if and only if academics act ethically and with integrity, and fulfill the terms of their contracts of employment. But even stated thus, it raises very difficult issues: for example, should a legal academic be fired for having written a deeply controversial (possibly unlawful) legal memorandum whilst on secondment to government employment? Whatever about the problems at the margins, academic tenure is an important conception, and may have deeper cultural purchase in Irish academia than that provided by the 1997 Act. For example, the conceptions of tenure have operated has a brake upon certain elements of the march of managerialism in Irish universities (see Hedley (2010) 1(1) Irish Journal of Legal Studies 117 (pdf), 128-129, 133), though of course there are many factors which have affected the success or otherwise of the managerialist endeavours.

The third part of the answer to Jim’s question lies in the manner in which this tension between tenure and managerialism will be worked out in the light of the Croke Park Public Service Agreement and the Hunt Report. It has been argued that the implementation of the Croke Park agreement will hasten the demise of academic freedom and tenure, and indeed that third level education will be irretrievably damaged as a consequence. There is a debate as to whether eliminating tenure would save money (pro | con). The Hunt Report proposes a significant increase in government control of university governance, with potential impact on tenure. All of this will require significant amendment to the Universities Act, 1997, which puts that Act’s protections of academic freedom and tenure potentially on the table. So, whilst the first two elements of the answer to Jim’s question demonstrate that the current protections of academic tenure are strong in the Irish university sector at present, the third element demonstrates that this can no longer be taken for granted.

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10 Responses to “Academic tenure in the Universities Act, 1997”

  1. […] This post was mentioned on Twitter by David F O'Connell. David F O'Connell said: RT @efdel: cearta.ie » Academic tenure in the Universities Act, 1997 http://t.co/g3PPPdu // Superb post. Required reading. […]

  2. DCU has written a replacement for its illegal statute of 2001 but has received independent legal advice that the proposed replacement also is illegal; see

    http://academictenure.blogspot.com/

    The legal gridlock at DCU cannot now be resolved; bear in mind that SIPTU has never recognized either the 2001 statute, its replacement, nor indeed the redrafting of all “permanent” contracts” in 1995 which management issued as an “agreement” with SIPTU, the closed-shop union.

    The game is up at this point. It is clear that the Irish state no longer wants to have universities, in any real sense.

    The role of the scholar in Irish society needs reconstrual.

  3. […] and Board have recently approved a detailed and progressive Policy on Academic Freedom. I have also discussed similar statutory provisions in other Irish universities. To that, I can now add the provisions of […]

  4. Sean O Nuallain PhD says:

    26 Dec 2011 – we are told that statute no3 was “superseded” in 2010 – http://www.dcu.ie/info/statutes/

    Luckily the internet archive keeps track of such things and can confirm that this is not the case;

    http://web.archive.org/web/20110611202122/http://www.dcu.ie/info/statutes/index.shtml

    So, by June 11 2011 there still is NO mention of statute no 5 – nor is there one on Dec 14 2010;

    http://wayback.archive.org/web/20101015000000*/http://www.dcu.ie/info/statutes/index.shtml

    So DCU did NOT supersede the statute in 2010 – unless it takes a year for Niall O’Leary, their web guy, to do very basic stuff.

    The illegal statute 3 is still on the web on the DCU server and can be accessed by anyone;

    http://www.dcu.ie/info/statutes/statute3.shtml

    Incidentally, the “new statute” is probably this illegal one;

    http://academictenure.blogspot.com/2011/03/dcus-illegal-disciplinary-statute-still.html

    I can confirm that Ruairi Quinn has been lobbied on this issue from inside the Labour party and that may have caused the change. For me, this is mission accomplished; and I can also confirm that it was I who initially advised Paul Cahill in 2006, and who got him the barrister for his successful injunction case which started everything

    The new statute, on the other hand, cannot be accessed by any member of the public who pays for DCU, a public university, to assess its conformity with Irish law, as he will see if he tries to access it;

    http://www.dcu.ie/info/policies/suspension_and_dismissal_employees.pdf

  5. Sean O Nuallain PhD says:

    The new illegal statute is on

    http://academictenure.blogspot.com/2011/01/dcus-new-illegal-statute.html

    sorry for my mistake

  6. Sean O Nuallain PhD says:

    If anyone wants to come to Berkeley and discuss this issue July 10-11 2012;

    Call for papers; “Ireland in crisis” conference, Berkeley, July 10 and 11 2012

    The Organizing and academic committees of the conference “Ireland in crisis” welcome submissions for

    Ireland in crisis? – analyses and proposed solutions

    Date/Time; July 10 and 11 2012 8-30 am to 5pm

    The location is the home room international house at UC Berkeley;

    http://ihouse.berkeley.edu/

    Please distribute to anyone who might be interested

    Organizing committee

    Sean O Nuallain (CSLI, Stanford University) (Conference chair)
    Liliane Koziol (program director, International house at UC Berkeley

    Academic committee
    Peter Glazer (Theater, Dance, and Performance Studies, UC Berkeley)
    Mary Power (New Mexico
    Jacqui Fulmer
    Sean O Nuallain (CSLI, Stanford University)
    Peter M. Toner Professor Emeritus The University of New Brunswick
    Alison Harvey Core Humanities ProgramUniversity of Nevada, Reno
    Virginia Morris (B.A. Radcliffe), Celtic Arts Center, LA
    Gabriel Rosenstock

    Confirmed plenary speakers/performers

    Peter Glazer (Theater, Dance, and Performance Studies, UC Berkeley)
    Mary Power (New Mexico
    Jacqui Fulmer
    Sean O Nuallain (CSLI, Stanford University)
    Alison Harvey Core Humanities ProgramUniversity of Nevada, Reno
    Virginia Morris (B.A. Radcliffe), Celtic Arts Center, LA
    Gabriel Rosenstock
    Melanie O’Reilly

    Format

    Plenaries will be interspersed with ample time for discussion with relatively “light touch” moderation.

    Schedule for submission;

    Abstracts are to be submitted to contuirt2012@gmail.com

    Mar 21, 2012; Deadline for submission of (max 2000 words) abstracts. They will be assessed by an appropriate program committee

    April 9. 2012; Notification of acceptance

    There is absolutely no Irish state or corporate involvement in this conference, and best principles of academic freedom will be upheld. The conference chair has a good record of getting conference proceedings published.

    Speakers will be added as time progresses.

    Registration

    Fees will be payable by cheque on the day. We currently envisage a registration fee of $100 with $50 discount for the unwaged. No-one will be turned away for lack of funds. Ihouse has on-site inexpensive meals, and participants can buy tickets for these at the site.

    Prologue: Ireland in crisis? – analyses and proposed solutions

    While the economic crash in 2008 Ireland was both foreseeable and not untypical for that historical year, there are many indications that recovery this time will be both more difficult and more multi-faceted than its 1990’s equivalent. A related issue is the dearth of real analysis that characterises Irish studies, which allowed the absurdities of the so-called “Celtic tiger” period to reach vertiginous heights. This conference can perhaps begin to address at least the latter issue.

    Unlike the case in the 1980’s, this economic crash has occurred at a time of fracture in the major national narratives. It may be the case that Irish people have had difficulty adjusting themselves to living in a state that is the result of imposed borders, versus an island that is unequivocally their home. Simultaneously, it is perhaps true that the Irish state has perfected a totalising corporatism that has replaced Roman Catholicism with neoliberalism as its dogma. What is certainly arguable is that the cultural output of the Irish, exemplified in popular music, has never been of worse quality in the history of the state, and perhaps indeed before the state came into being.

    A second major difference from the 1980’s crash is the vastly different economic context, both at the macro and micro levels. At the former level, the country has signed on to a set of EU agreements that restrict its ability to govern, both in fiscal and monetary terms. At the latter level, the transaction cost of simple commercial activity in Ireland has grown enormously, due both to vastly higher costs for infrastructure and labour and the incursions by the state into civil society that have made Ireland the most regulated country in the world. Paradoxically, these incursions have been accompanied by a dearth of real corporate enforcement, resulting in the rest of the world losing faith in the now surely doomed Irish stock market.

    Finally, the fact that EMI was compelled to sue the Irish state to get it to conform to EU copyright law did not surprise many of those working in area that need to protect intellectual property. The dearth of corporate enforcement is attested by the assignment of a laughably small team of investigators to the Anglo-Irish bank investigation, a tiny investment in cleaning up one of the greatest financial scandals in recent world history, and one that the head of the commercial court in Ireland has frequently criticized. In fact, may one ask whether we are living through the aftermath of a fortunately incomplete coup, one devised to destroy ancient and well-functioning aspects of civil society while placing power and money irrevocably in a very few hands?

    Papers are of course welcome which disagree with any or all of the above propositions

    Four themes

    Theme 1: Theater and other performing arts.

    A panel discussion will begin this section. It will comprise (inter alia);

    Virginia Morris, Director of “An claidheamh soluis” in LA, which was founded by one of James Connolly’s granchildren
    (Associate) Prof. Peter Glazer, Theater and Performing arts UC Berkeley, writer and director of musical theater
    Jacqui Fulmer

    It will be noted that Ireland’s only recent original off-Broadway success was tiny rough Magic’s “Improbable frequency”, a musical tinged with science and espionage, and peopled by such untypical visitors to Ireland as Schroedinger and John Betjeman, both active in their wildly different ways in WW2 Dublin. By contrast, the huge budget of “Grania” succeeded only in acting as life-support in prolonging the run. Has the lode of the “Celtic Twilight” finally been over-mined? Or was the Grania mistake precisely the opposite; that of bringing in the non-Irish writers of Les Miserables? Papers might address this kind of theme, extending it to prose and poetry, along these lines, inter alia;

    – Corporatism in music; how far is IMRO to blame for the dearth in new Irish music? How destructive has its unique enclosure of the commons, involving assignment of musicians’ copyrights, actually been? Or are there other, better reasons?
    – The starring role of the foul-mouthed gangster in Irish fiction and film
    – Are 40,000 native speakers sufficient to keep An Gaeilge alive?

    Theme 2: Metaphysics and Myth in Joyce

    Speakers include Mary Jane Power

    While the workaday implications of Bloom’s peregrinations have been worked
    perhaps to death, more fundamental themes are perhaps discernible in
    Joyce. For example, the attack on coloniality may be perceived as being
    mediated through an attack on space and time itself, particularly after
    the “Nighttown” episode. On a more prosaic level, the occasional
    cartographic inaccuracies in Ulysses may perhaps be a reaction to the
    ordinance survey.

    Yet the attack in Joyce’s last two great works may be more fundamental
    still. The Citizen in “cyclops” is secure in his identity as coextensive
    to, and identical with, the island of Ireland. After Nighttown, it can
    perhaps be argued that this distinction of subject and object will no
    longer be possible. In fact, a new way of experiencing Ireland is being
    proposed; one that counters classical western epistemological tenets. And
    so, the Bhagavad gita is evoked in lined like “I am the dreamery creamery
    butter”

    Yet many will recognise this as referring also to the song of Amergin. So
    was Joseph Campbell correct in finding tantric echoes in the Wake? Or is
    the material linking Joyce to the medieval Gaelic sagas mere fantasy?

    Papers are invited which

    Explore the above, even in disagreement
    Contextualise their argument in terms of anomie in modern Ireland

    Theme 3 Politics, technology, and the economy

    Speakers include Sean O Nuallain

    Topics include;

    – Civil society and the state in Ireland; for example, do trade unions really exist in the public sector there?
    – Unilateral interpretation of the Good Friday agreement by the British government, and its aftermath
    – The economization of life in Ireland; neoliberalism as the new dogma, with attendant sacrifice of political capital if reality contradicts its precepts. An example would be the health charges for pensioners.
    – The destruction of the native technology industry, and the attempt to supersede it with the failed Medialab and Science Foundation adventures.

    – The destruction of the island narrative; the strange case of the Tara/M3 motorway, and the ascent of historical revisionism to state dogma
    – The attack on academic tenure and the attempt in the Supreme court by both DCU and UCC to introduce summary dismissal, without cause, of all academics
    – Ireland as Delaware in Europe; from Intel to rendition flights
    – Is political violence inevitable within the 26-county state, starting perhaps from the student fee protests or the North Mayo/ Shell oil situation?
    – The obsession with paying back bondholders. Is it impossible for Ireland to relaunch its own currency?

    Theme 4 Ireland’s Fanon? – Terrence MacSwiney and intellectual freedom

    Speakers include Melanie O’Reilly

    As conceived of by Terrence Macswiney, Intellectual freedom is neither more not less than the right to live life by one’s own lights. Therefore, academic freedom is a consequence, an assent in the academy to a practise that affects the larger society. This conference theme deals with how Intellectual freedom is being violated in Ireland, with consequences ranging from the very increase in the suicide rate for which the Iar-Taoiseach expressed a preference to a restriction of the cultural commons with a coarsening of Irish culture

    Papers are invited that deal with (inter alia);

    1. The incursions into academic freedom by both the British and Irish governments, acting at times in unison. The Boston college/McIntyre case, with such interlocutors with the IRA as Ed Moloney, and Eamon McCann surely next on the firing line (perhaps literally); the botched attempt to extend Britain’s recission of academic tenure to Ireland

    2. The suspected infiltration of the American congress of Irish Studies by British intelligence; the attested (by O Snodaigh’s Dail question) preference of the Irish department of foreign affairs for using Irish taxpayers’ money for British studies revisionism rather than Irish culture

    3. The application of EU law, and – when not directly applicable – interpretations of EU directives to strengthen the hand of the Dublin oligarchy by massive handovers of Irish taxpayers’ money to “bondholders” (several of which did not expect to be repaid in full), and the constraining of Irish civil society

    4. The destruction of the native software and music industries in favor of mediocre foreign imports by Irish state bodies; the real story of corporation tax and law in Ireland

    5. The fact that tiny Ireland has 3 of the top 20 biggest law firms in the EU is already problematic; what are the consequences of the state’s readiness to use them against its citizens for civil cases?

  7. Sean O Nuallain PhD says:

    Statute no 5 has just been rejected at DCU by a vote of 151-12 among the remaining Siptu members at DCU. This follows a resounding rejection in 2002 of its predecessor statute no 2, after which management decided to try their luck in the courts and lost the state many millions in legal fees.

    That management is still in place, and may try the same again. small wonder Ireland is broke

  8. Sean O Nuallain PhD says:

    Sorry – the immediately above should refer to statute no 3, not statute no 2;

    http://www.dcu.ie/info/statutes/statute3.shtml

    In fairness, it is hard to keep up and we will be well into statute double figures before a legal one is produced

    It is my view that in failing to produce a valid mechanism through which management – representing the taxpayers – exact proper behavior from staff, DCU has failed to the point that it should no longer exist. Free course websites like coursera.org in conjunction with open science do everything DCU does, and better.

  9. Very informative. DCU must follow the proper rules and regulations for a smooth functioning. A hassle free administration is possible only when there are right strategies involved.

  10. […] many ways, this is unfinished business left over from the Universities Act, 1997 (also here). Section 25(6) of that Act refers to “tenure”, but does not define it. Two cases dodged the question […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

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