Tenure and the Canadian Professoriate

journal of Canadian Studies • Revue d'etudes canadiennes Point Counterpoint Tenure and the Canadian Professoriate Michie! Horn No other aspect of university life is as misunderstood as tenure.1 Even the usually clear-eyedJohn Ralston Saul gets it wrong. Defining it as "a system of academic job security which has the effect of rating intellectual leadership on the basis of seniority,11 he asserts that its "initial justification ... was the need to protect freedom of speech, due to the justifiable fear that controversial professors might suffer at the hands of disapproving financial and governmental interests."2 This is mistaken. Tenure long antedates the modem concern with academic free speech. It is rooted in three ancient and persistent academic desires: for intellectual independence, collective autonomy and the time and financial security needed to carry on scholarly and scientific work. Not only is tenure misunderstood, it is under heavy attack. When Ibought my copy of Matthew W. Finkin's The Case for Tenure (1996), the bookstore clerk read the title and said with obvious surprise: "The case for tenure? I thought everybody was againstit." The purpose of this paper is briefly to examine and explain the legal and institutional development of tenure in Canada, to sketch the debate that surrounds it today, and to discuss its continuing function in academic life. • • • Tenure in Canadian universities has been oftwo different kinds. At the first Englishlanguage institution of higher education established in what is now Canada, King's College in Windsor, Nova Scotia, professors explicitly enjoyed tenure for life during good behaviour.' (This was akin to the tenure that the judiciarycame to enjoy.) Most universities made no reference to the term of office in their charters or early statutes, creating a presumption, particularly in those institutions which were influenced by the Scottish university tradition, that tenured professors held their offices for life, though they might be pensioned off when it suited a governing board to vote the money. (Formal pension plans did not exist until they were gradually introduced during the first half of the twentieth century.) Judicial interpretation from 1860 to 1923 did not sustain the presumption of life tenure. Wherever the principle was tested it was rejected, usually though not invariably in favour ofthe notion that tenured professors, though appointed without term, held their offices during the pleasure (that is at the discretion) of the governing Volume 34 • No. 3 • (Automne 1999 Fall) 261 262 Point Counterpoint • Michiel Horn boards of their institutions. Starting with the University of Toronto Act of 1906, moreover, tenure during pleasure became the legislatively imposed policy of five of the six pre-1950 provincial universities. (At the sixth, the University of New Brunswick, tenure during pleasure had been established by means of judicial interpretation .) Not until the 1960s did tenure during pleasure begin to yield to tenure during good behaviour, as faculty associations managed to obtain board approval of dismissal procedures that required cause to be shown before a tenured faculty member could be removed. • • • The first British North American case involving tenure took place in New Brunswick. Removed in 1861 from his professorship of classical and modem literature , EdwinJacob asked the Court of Queen's Bench for certiorari, a judicial review, charging that the Senate (until the 1950s this was the name of UNB's governing board) was not legally constituted. The court ruled that "the offices of the Professors ... are not held for any fixed time, nor by any permanent tenure; but ... are held at the pleasure of the governing bodies of the University, i.e., the Senate in the first place, subject to the approval of the Crown." Assuming such approval, "the Senate may ... remove any of the officers, without any formal proceeding in the nature of a trial, in the same way that a private individual may dispense with the services of a clerk or other servant...."No formalities need be observed or notiCe given.4 Judicial process took a different course in the classicist George Weir's suit against the board of trustees of Queen's University, but the outcome was similar. Dismissed in 1864, Weir claimed that Queen's had been modelled on the University of Edinburgh, where "the tenure of...