Legal History of Higher Education Affirmative Action Before the Michigan cases

Each opening on the U.S. Supreme Court leads to everyone questioning how a change in justices might impact the legal environment for higher education. Just as after Justice Sandra Day O’Connor’s departure, Anthony Kennedy’s retirement means the swing vote on many key higher education cases will be leaving the Court. While the Supreme Court’s more recent history with ruling on affirmative action in the context of the two rounds of cases involving the University of Michigan are more familiar to most people in higher education today, the longer history often is less understood. In today’s post, I will share the legal history of affirmative action in higher education admissions before the Michigan cases.

Legal History of Higher Education Affirmative Action Before the Michigan cases

History of tenure

Although vestiges of the modern tenure system can be found in higher education as far back as the twelfth and thirteenth centuries, tenure as we know it today is largely a by-product of the twentieth century. Aspects of today’s tenure system—such as faculty rank, longer lifetime appointments, and evaluation for performance—appeared in fits and starts during the 1800s. After the Civil War, colleges and universities began adopting the German higher education model, which emphasized science and research to an extent atypical even among the best American colleges of the day. With the growth of this research university model, American professors began to expect the same perks that their German colleagues enjoyed, including indefinite appointments except in cases of gross dereliction of duty (Hofstadter & Metzger, 1955). In today’s post, I want to share a little about the history of tenure to provide some context for understanding tenure in today’s university.

Photo credit: UW AAUP Chapter

In many ways, the tenure system can be directly tied back to the founding of the American Association of University Professors (AAUP) in 1915.

Founders, including noted education philosopher John Dewey, sought protections for faculty after a series of highly publicized cases in which prominent faculty members were dismissed because of unpopular views.

Considered alongside a rise in disciplinary associations, the times demanded a strong voice supporting the role of faculty in higher education. The AAUP was formed as an organization that would advocate across all disciplines and higher education institutions.

With its founding, the AAUP promoted the value of academic freedom and, ultimately, the necessity of the “security of tenure” to protect this important ideal.

The AAUP put forth the first forceful case for the necessity of tenure in supporting the teaching and research missions of higher education. Yet, the concept of tenure was still relatively in flux until a more definitive statement on tenure was put forward in 1940.

At this time, the Statement of Principles on Academic Freedom and Tenure was jointly created by the AAUP and the Association of American Colleges and Universities and remains the most significant document related to tenure in the history of the United States.

The Statement of Principles on Academic Freedom and Tenure provided a  clear and stable concept of tenure, which remains the guiding framework across higher education today.

A key element of the AAUP’s original 1915 statement was the inclusion of judicial proceedings and due process as part of tenure. In addition, the AAUP established the guiding principle of a probationary period recognizable as the pre-tenure years.

The idea was that assistant professors would need to successfully complete a probationary period before receiving tenure (Pollitt & Kurland, 1998).

The AAUP’s 1940 Statement identifies the purposes of tenure as follows:

(1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its1 students and to society.

In addition, the AAUP stated that faculty dismissal should be determined by a faculty trial, with written charges, and only for adequate cause. The clear purpose of these policies would be to protect professors by offering rights of due process and access to a jury of their colleagues.

From the very beginning, there was a legal element of the tenure process that remains an important aspect today.

One of the reasons tenure processes and policies bear remarkable similarities across institutions is that, while higher education institutions have existed for centuries, tenure was created over the past 100 years, making it a relatively new concept.

The importance of faculty evaluation along with administrative review is born out of the initial rationale for creating tenure. The basic steps that assistant professors will follow while going up for tenure are largely the same ones outlined by the AAUP back in 1940.

Tenure policies and procedures were designed from the beginning to promote the mission of higher education and not to provide leverage to either the faculty member or the institution.

Furthermore, the AAUP’s goal, which by most standards was quite successful, was to promote common procedures for tenure. As a result, pre-tenure faculty and institutions have a relatively well-established process and procedure for evaluating faculty at the conclusion of the probationary period.

3 overarching themes of the history of American higher education

As much as any organization in society, higher education is shaped by history. When you have an institution that has not fundamentally changed much since the Middle Ages, history is going to have a pervasive influence. I believe that every faculty member and administrator should understand the history of higher education and how that shapes the work of today’s institutions. In this post, I share three overarching themes of the history of American higher education.

The history of American higher education is fascinating for how central themes reoccur at various points.

Failure of the National University Idea

I recently guest lectured in a higher education course on institutional diversity and how the American system came to exhibit such an array of institutional types.  I noted that I thought the national university idea was one of the more important “non-events” in the history of higher education.  In many ways, the lack of a federal university is one of the most under appreciated concepts in our history.

In today’s post, I want to share an excerpt from my monograph, Understanding Institutional Diversity in American Higher Education.  In this section, I describe the history of the federal university idea and how it ultimately failed.

College Athletics on Trial, But Problems There Since the Beginning

Last week, I published this op-ed in the Fort Worth Star-Telegram.  I wanted to share it here too because I believe it is important for understanding how the history of intercollegiate athletics plays a part in today’s challenges.

Photo credit: Associated Press

In a courtroom in Oakland, Calif., this week, current and former college athletes finally are getting their day in court.

The athletes are suing the NCAA for a share of the profits made from television contracts to broadcast intercollegiate athletics. The athletes contend that the NCAA made millions of dollars off of them while not properly compensating them.