The Regrettable Underenforcement of Incompetence as Cause to Dismiss Tenured Faculty

19 Pages Posted: 27 Jan 2016

See all articles by David M. Rabban

David M. Rabban

University of Texas School of Law

Date Written: January 26, 2016

Abstract

This essay asserts that the reluctance of universities to dismiss tenured professors for incompetence compromises the traditional and convincing justification for protecting academic freedom through tenure. This justification is most fully elaborated in the 1915 Declaration of Principles of the American Association of University Professors (AAUP). After asserting that society benefits from the academic freedom of professors to express their expert professional views without fear of dismissal, the 1915 Declaration maintained that the grant of permanent tenure following a probationary period of employment protects academic freedom. Yet the 1915 Declaration also stressed that academic freedom does not extend to expression that fails to meet professional standards. Nor, it added, does permanent tenure prevent dismissal for cause, which could include "professional incompetency" as well as misconduct. It reasoned that only fellow faculty members have the expertise to determine departures from professional standards. It, therefore, insisted that a professor is entitled to a hearing by a committee of faculty peers before being dismissed and that professors have an obligation to serve on these committees.

This essay assesses the concerns that explain the overwhelming reluctance of university administrators to bring charges against clearly incompetent tenured faculty and offers suggestions to minimize them. It concludes that administrators should bring charges in appropriately extreme circumstances and should give substantial deference to the decisions of the faculty hearing committee. Doing so would uphold the principle of academic freedom, based on professional competence as determined by peer review, that is at the heart of the 1915 Declaration and that is still convincing today.

Keywords: academic freedom and tenure, dismissal of tenured faculty for incompetence, higher education and the law, American Association of University Professors

Suggested Citation

Rabban, David M., The Regrettable Underenforcement of Incompetence as Cause to Dismiss Tenured Faculty (January 26, 2016). Indiana Law Journal, Vol. 91, 2015; U of Texas Law, Public Law Research Paper No. 643. Available at SSRN: https://ssrn.com/abstract=2722186

David M. Rabban (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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