The Statutes of a unversity constitute its basic law. For example, when the Charter of Elizabeth, dated 3 March 1592, founded Trinity College Dublin as the mother of a University, it afforded the College the power to adopt and amend Statutes to regulate its internal affairs. In the restatement of TCD’s Statutes which come into force today, the Preamble sets out some values and aspirations to inform and underpin their interpretation and application. Among those values, the College

Affirms its rights and responsibilities to preserve and promote academic freedom, tenure, and freedom of expression, [and]

Recognises the corresponding commitment of its members to pursue with integrity the highest standards in teaching and learning, and in research and scholarship, …

I have already looked at the principle of academic freedom in Irish law in an earlier post on this blog; in this post I want to look at the concomitant principle of academic tenure, using the relevant provisions of TCD’s Statutes as a guide; and in a future post, I will look at the extent to which it is currently protected as a matter of Irish law.

Broadly speaking, academic tenure is the right of a full-time academic not to be arbitrarily dismissed. It is one of the means by which the principle of academic freedom is secured. Intellectual autonomy and academic freedom are central to academic research and scholarship, and the protections afforded by academic tenure allow academics to investigate unfashionable, controversial, or distasteful topics or dissent from received wisdom, and to teach and pubish their honest conculsions, without fear of external pressures (for example, from university donors, vociferous critics, or government) or internal censure. In one famous example, critics of the 19th century American progressive leader Richard Ely accused him of socialism and sought to have him removed as an economics professor at the University of Wisconsin-Madison. The attempt failed, and a plaque on the campus proclaims:

Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.

The protections afforded by tenure and academic freedom are necessary for any university committed to the pursuit of knowledge in a democratic society. All of this means, for example, that I cannot be dismissed if my teaching or scholarship is controversial. Thus, if my academic work challenges your conception relating, say, to freedom of expression, then your proper response is to make the contrary academic arguments, and not to seek to censor me or have me fired. The right not to be arbitrarily dismissed if my scholarship is controversial re-inforces my academic freedom to pursue that scholarship. More generally, it allows academic experts to engage in important public debate and to speak truth to power, without fear of retaliation: think, for example, of the many academic economists who have criticised government financial policy of late, or the many academic historians and archaeologists who have criticised public infrastructural policy.

For these kinds of reasons, the Statutes of Trinity College Dublin expressly protect academic freedom in the following terms:

1. … to preserve and promote the traditional principles of academic freedom and to provide security against arbitrary dismissal, the principle of tenure guarantees that the employment of permanent, full-time members of the academic staff shall not be terminated, except
   (a) in the case of a non-continuation of a contract during the course of or at the end of a period of probation, if any,
   (b) by resignation or retirement,
   (c) through discharge of the contract by operation of law, or
   (d) pursuant to the procedures set out in the Division on Conduct.
2. Board may, in a Schedule, apply the principle of tenure to other categories of academic staff, on terms consistent with their contracts of employment.

Of course, this is not an absolute protection. As the Preamble to TCD’s Statutes makes clear, academic freedom and tenure carry with them a corresponding commitment on the part of academics to pursue their work with integrity. Moreover, as the detailed provision immediately above makes clear, tenure provides security against arbitrary dismissal, but does not preclude dismissal for legitimate disciplinary reasons pursuant to the disciplinary procedures set out in the Statutes. Furthermore, tenure only protects academics in respect of matters within their contracts of academic employment. Nor is it available willy-nilly: universities have clear criteria for the appointment to a position carrying tenure.

Critics argue that it can shield malingering or incompetent faculty and reduce intellectual diversity; that it is a financially unsustainable bad deal for universities; and that it is intellectually indefensible in its own terms – in particular, its aims can best be achieved by a much narrower rule in academic contracts of employment barring dismissal for viewpoint-related reasons. Moreover – and paradoxically – where it typically comes late in an academic career structure, it can hamstring younger academics anxious not to rock the boat before they attain the holy grail of tenure. As Erin O’Connor puts it on one of my favourite blogs, Critical Mass:

Increasingly, tenure is revealed to be (to have become) an unsustainable system of privilege whose time has passed. When the AAUP and the AFT and others demand the restoration of tenure, they reveal themselves as impractical, anachronistic dinosaurs. Tenure as we have known it is done. There’s no going back. And that is not a bad thing. … [The alternative is to create] enough job security to enable intellectuals to comfortably take on the long-term teaching and research projects that yield great value for all of us, but can’t be completed, or even adequately tracked, on a year-to-year basis. We’re also talking about not having so much job security that accountability, incentives, and flexibility go out the window. …

Against criticisms of this sort, there are two Irish blogs devoted to the defence of tenure. On both sides of the argument, there is much overblown rhetoric. When it is stripped away, it becomes clear that many criticisms are misplaced, since they typically denounce a straw man, overstate the financial costs, or propose inadequate alternatives. Take the straw man; the criticisms usually assume that tenure amounts to an absolute guarantee of employment until retirement age. Stated in such unqualified terms, it is easy to knock it down. In fact, tenure is much more limited than that: it is a protection against arbitrary dismissal, and thus functions as a guarantee of employment until retirement age if and only if academics act with integrity, observe the ethical requirements that the system demands, and fulfill the terms of their contracts of employment. It does not protect malingering or incompetent academics, or those who seek to thwart efforts to increase alternative viewpoints being taught, since – by definition – they are not acting ethically, with integrity, or performing their contractual obligations.

Furthermore, financial or economic criticisms often fail to account for the fact that the intellectual autonomy afforded by academic freedom and the job security afforded by tenure are significant employment benefits, without which universities would have to offer higher salaries to attract talented scholars. (For example, academic freedom and tenure are often cited as compensation for salaries that are typically much lower than those available in the private sector; but even in disciplines where there is no private sector, academic freedom and tenure contribute strongly to faculty retention in the face of competition from other universities). Moreover, the prospect of tenure tends to provide an incentive to junior faculty to produce scholarship of the highest quality, and aspects of an individual university’s tenure rules which paradoxically work the other way can – and should – be revised.

Nor do possible alternatives provide sufficient protection: the fact that a provision barring dismissal for political reasons can be inserted in a contract of employment does not mean that it must be in every (or indeed, in any) case; and the fact that a university does insert such a clause now as a matter of course does not mean that it cannot change policy in the future. On the other hand, setting it out in university Statutes creates a generally applicable right that is not susceptible to shifting fashions in policy.

This is not to say that the conception of tenure cannot develop into something more nuanced or flexible. But an argument for evolution and flexibility is just that; it is not an argument for abolition; and it should not be over-pressed, lest profound societal, democratic and academic benefits be unjustifiably lost.

It is important then that universities respect the principle of academic tenure, and not dilute or undercut it by an ever-increasing casualization of teaching, an over-reliance on fixed-term and unrenewed contracts, and a lack of support for those who do not (yet) have tenure. It is even more important that universities defend twin principles of tenure and academic freedom against external threats. This is why institutional commitment to these principles in a university’s statutes cannot be overstated: it demonstrates that the unversity believes that tenure and academic freedom are fundamental to its mission. For these reasons, I am delighted that TCD’s new Statutes place these principles at the heart of the values and aspirations stated in the Premable, and protect them in detail in the text itself.

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I’m sorry not to have been able to acknowledge the celebration of AFAF’s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani’s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Read the rest of this entry »

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There are some – related – articles in today’s Irish Independent on themes which have featured on this blog. A report published yesterday by the Higher Education Authority (HEA) shows that the number of students going to college has hit a record high (the Irish Times ran the same story under the headline that there are more students than farmers in Ireland) and that courses in science and computing are now back in favour.

However, technology is not necessarily an uncritically good thing, as is shown by the headline to another story: I’m so addicted to email, Facebook and Twitter, I have to hide it from my wife …. In that piece, reviewing The tyranny of email by John Freeman, James Delingpole owns up to his own addiction to communications technology. Of course, he is not the only person whose life is being ruined by email. Moreover, a similar addiction drives the use of mobile phones and laptops in class as increasingly popular displacement activities.

Finally, and a little more seriously, the print edition – but not, so far as I can see, the online edition (though it may in time be published in the archives of the Education section or, perhaps, of the Technology sections) – has a really interesting piece on distance learning at third level, discussing the Open University and Hibernia College. Online education poses both challenges and opportunities for bricks and mortar universities, and they will have to be faced and embraced if universities are to survive and thrive.

The moral of the stories is, of course, that if the undergraduates who now outnumber farmers can’t tear themselves away from their email and social networking sites, they might decide to eschew traditional universities and study online instead!

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Patents encourage innovation – an inventor who is awarded a patent over an invention can exploit it and profit from it, at least according to the Irish Patents Office. Innovation therefore matters, and Innovation Dublin 2009, a week long festival of public events aimed at promoting and stimulating innovation and creativity in the city, begins today. The festival, co-ordinated by Dublin City Council, is a key project of the Creative Dublin Alliance (press release | Ferdinand | Karlin), a collaborative group made up of Dublin local authorities, universities, state agencies, businesses and the not-for-profit sector, which was launched in Trinity’s Science Gallery earlier this year. According to a TCD Communications Office press release:

As part of Innovation Dublin 2009 Trinity College has planned a range of seminars, showcases, discussions, workshops and exhibitions promoting both Dublin and Trinity College as an energetic, diverse and innovative place to learn, live, work and create. Events within Trinity will range from interactive technology showcases to the analysis of medieval manuscripts; from virtual exhibitions documenting living histories of older Dubliners to a forum on the generation of ideas.

Doubtless, some of this innovation will lead to patents, especially in the universities. In my earlier post on Universities and Patents, I referred to the decision of French J in Federal Court of Australia in University of Western Australia v Gray (No 20) [2008] FCA 498 (17 April 2008) in which UWA failed to assert a patent over anti-cancer technologies developed by the defendant, who had been a member of its academic staff. UWA appealed, and in University of Western Australia v Gray [2009] FCAFC 116 (3 September 2009), the Full Court of the Federal Court upheld the decision of French J (unsurprisingly, the UWA has sought leave to appeal to the High Court of Australia).

It is an important judgment, covering a wide range of issues relating to innovation, universities and patents. Read the rest of this entry »

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The recently renegotiated Programme For Government (doc | pdf | scribd) between the Green Party and Fianna Fáil contains the following clause:

Conscious of the economic pressures on parents today, this Government will not proceed with any new scheme of student contribution for Third Level education.

So, that’s it then, the reintroduction of third-level fees is off the agenda for the lifetime of the current government.

Update: Ferdinand von Prondzynski writes that the decision

… will come back to haunt us. It is a bad decision, made for the wrong reasons. … As the taxpayer is in no position to increase funding, or even maintain the existing totally inadequate levels, we are now facing a situation where the increasingly scarce resources will be concentrated on the wealthier sections of the population and the disadvantaged will be neglected. In addition, the sector as a whole will be asset stripped and will be unable to compete. … I have been at the coalface now for a decade of trying to maintain a world class system of education with the resources that increasingly reflect the aspirations of a developing country. This decision may save votes, but will do long term damage to the sector. It is a bad day for higher education.

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I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

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A little while ago I blogged about the potential challenge which online education can pose for the traditional model of the university, comparing and contrasting the positions of newspapers and universities as they face online challenges. Now I see that Grant McCracken is also musing that what’s happening to journalism may some day happen to higher education (disintermediating higher education) – the Washington Post also notes that online classes are just cheaper to produce – but then McCracken points out that whilst there may be a move towards self-instruction, the key difference between newspapers and universities is accreditation:

We will continue to need a university, or someone, to certify students have completed their degree requirements, and perhaps how they did. Then the question becomes:

what’s the best way to do accreditation?

The English universities are a useful indicator. Traditionally, they forgave the separation [of] knowledge acquisition from examination. The universities allowed the student an extraordinary latitude. If a student could pass her exams, it didn’t matter if she had spent all her time in the college bar. She was good to go.

We could use a model of this kind. We would leave it to students to prepare their own programs of education, to gather on line with whomever they found interesting and useful. … Students in self instruction will have to decide whether they are ready to sit their exams. They will visit the accreditation website occasionally and examine the oral exams and written ones. They ask themselves, “Could I handle questions of that order?” And if they think they can, they book an appointment, pay their fee, and wait for the examiners to swing back through town. …

For a glimpse of a future that is rapidly become present, have a look at the Online Degrees Hub. For a major Irish player in this market, have a look at Hibernia College.

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As a counterpoint to the THE’s piece on The seven deadly sins of the academy, about which I wrote here, Mary Beard has exasperatedly pointed out that the entry about lust was – as the author himself has also had to explain – satirical:

Sex with students? Is Terence Kealey as misunderstood as Juvenal?

… I hadn’t realised that there was a storm about Terence Kealey’s piece on Lust … So I took a look at it. … It was instantly clear to me that this was SATIRE. … Taking several more, careful looks at the Kealey piece, I was left in no doubt that he was aiming his darts at the ways crude sexual exploitation of female students gets justified, by satircally mimicking the locker room style in which it is discussed. Come on everyone, NO VICE-CHANCELLOR (not even of Buckingham) calls women students a “perk” unless satirically (and aiming a dart at precisely those assumptions). Honest.

It was however a dreadful experience looking not only at the press reports of all this but also the comments of the THE website (some of which were presumably written by academics, who showed no ability to read or understand satire AT ALL . . . maybe they were all computer scientist, but I rather doubt it). To be fair, a few did make the plea for humour and satire. But not many. …

The trouble with satire, as poor Kealey has found, is that the literal minded are always liable not to get it. And the satirist is inadvertently taken to support the very views s/he is attacking.

Perhaps, for the literal-minded, we should replace “lust” in the list with “academic insularity”, and then confine the literal-minded to their insulæ.

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