Academic tenure in the Universities Act, 1997

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

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 academic freedom 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.