First, Robert Weissberg, a political science prof at Illinois, suggested that tenure litigation would kill tenure (at least for that most endangered species, the white male.) Then Walter Olsen, at Overlawyered, agreed at least as to the core idea: litigation threatens tenure. And now Paul Secunda, over at Workplace Prof, is hosting a chat about whether this is all garbage. (Scott Moss and Dana Nguyen, for example, think so.)
My view? I’m with Scott and Dana: this argument is 99% specious. It is true that there is a move away from tenure in the academy, and I suppose that litigation might be a tiny part of this. But there are many other factors – not least of which is money. Non tenured slots don’t necessarily pay less, but in practice they tend to be cheaper.
The push for increased scholarly production means that institutions are increasingly bifurcating the academic job into tenured research and untenured teaching. Non-tenured, lower pay positions allow schools to offer richer, more diverse curricula. The lower pay positions also allow schools to bolster student/faculty ratios, an important factor in both college and graduate school US News rankings. And in law, schools are seeking ways to increase experiential offerings (with their famously low student-faculty ratios) at a comparatively lower price point.
None of this is good news for entry level teaching candidates. And perhaps the idea of “price points” is an anathema to our conception of non-profit education. But in this case, at least, I don’t think it’s fair to blame the lawyers.