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Category: Legal Issues

This article is the last in a series of four that provides an update on the activities and progress of those groups who want to eliminate tenure. Part 1 article focused on why higher education is vulnerable to these attacks at this time. Part 2 examined the efforts of some state legislatures and governing boards to eliminate or cripple tenure as well as the actions of some of our college and university administrations that failed to recognize the due process requirement granted through tenure. Part 3 gave some examples of how students have played roles in the loss of academic freedom and provided an example of one state that found a way around legislative interference. This final article discusses some steps higher education can take to deflect the attacks on tenure.

Dealing with individuals from within the academy

There are those within academe who feel that academic freedom is limited to professors’ scholarly expertise in research and teaching. It is when they step out of this protected space and enter the larger, political world that the trouble begins. There are also individuals within our institutions and organizations who feel that academic freedom includes the right to enter the discourse on subjects unrelated to their expertise while assuming a scholarly pose. Furthermore, they say faculty should be able to criticize anyone, including their own institution, using any tool available, including social media. There may be conversations between faculty and administration that need to take place to reduce this sort of thing, especially if the institution is a target of conservatives in a conservative environment.

As a scientist I did not and would not get into classroom conversations on hot-button issues (e.g., race, abortion, ethnicity, gender, and police funding). This is the case with many of my colleagues across the sciences as well. I have my opinions on these matters but am happy to keep them to myself while in the classroom. Faculty in the social sciences, humanities, education, social work, and other fields, however, will find some of these topics relevant to their disciplines, their teaching, and perhaps their scholarship. Because of the highly partisan political divide on these issues and the fervor of some of the opinion holders on both sides, such topics must be approached with great care in the classroom. This is the responsibility of instructors; they must set the rules for the discussion and stand ready to enforce them. In the end, conversation should be respectful and civil and recognize all participants’ opinions. Instructors should not make their opinions known in class as doing so can influence (or stifle) students with opposing views. Disallowed actions include shouting down or interrupting speakers, shaming, dismissing, ridiculing, and other similarly bad behaviors. The Bipartisan Policy Center has recently released a document (Campus Free Expression: A New Roadmap) formulated by the Academic Leaders Task Force on Campus Free Expression (2021) that provides campuses with guidelines on structuring these types of interactions at all levels. A recent article from Liberal Education for classroom conversations is also available (Prystowsky, 2021).

Faculty strategies

There are some practical strategies that faculty can employ to avoid pitfalls like those encountered by the professors in the examples in Parts 2 and 3 of this series.

  1. When a sensitive topic (by current standards) is to be a subject (e.g., gender or race issues) for classroom discussion, when sensitivities are high, and what you have done in the past may not go unchallenged now, review these carefully and use different examples or reword your statements. Language matters.
  2. Put a statement in your syllabus if you plan on using examples or subject matter that students may find objectionable. Go over these on the first day of class, explaining the rationale for their usage and invite any students who have further questions to visit during office hours.
  3. If you have an ongoing dispute with someone of importance on or off campus (e.g., upper administration or a board member or legislator), resist the urge to take it public on social media. Doing so will increase resentment and may result in the target becoming more resistant. Don’t poke the bear, especially the one with the big stick!

Dealing with student issues certainly has changed; never before have the voices of the few been so powerful in inducing administration to sanction faculty. The social justice movement has stimulated administration to act so quickly and decisively on student complaints that some have erred in their responses and have ended up being sued. Win or lose, these occurrences have no positive impact on the institution or on faculty morale. Our administrations can and should say no to unreasonable student demands. Immediate sanctions against university personnel for transgressions like the ones this series has addressed must be avoided. Administrators should be prepared to launch an objective investigation into the charges made and have a faculty committee ready to look at the evidence, hear both sides of the case, and recommend whether or what sanctions are in order. All this information should be assembled in a widely distributed set of university policies. Moving unilaterally without faculty input (due process) will result in diminished faculty morale, legal proceedings, and expensive settlements.

Two internal groups merit comments here. The first are administrators whose actions can increase the inequity of situations on some of our campuses. These can be middle managers or deans, for example, who won’t support free speech or chairs who join in on shouting down invited speakers. Administration must be vigilant about such scenarios as they can undermine the campus’s free expression reputation. For the second group, I must mention the work of diversity, equity, and inclusion (DEI) offices and the like. In recent efforts to correct our shortcomings on racial, gender, and sexual orientation issues, there has been a significant increase in the number of these offices and of their staffs. These new hires are being thrust into complex controversies that are taking place under overly contentious circumstances. Because of the rapid ramp-up, inexperienced individuals are dealing with complex problems that can place their institutions in dicey legal positions (e.g., the UIC Law School case). Campuses should carefully review high-profile cases before making decisions and be more than willing to invest in additional or advanced training for DEI staff.

The last real challenge to tenure took place in the mid-1990s, when a few states considered eliminating it because of stories of tenured full professors cashing their paychecks while teaching poorly and being largely unproductive. Higher education countered with post-tenure review (PTR) and the argument that without tenure in place, they will be at an extreme disadvantage in recruiting and retaining excellent faculty. The loss of tenure will ultimately result in diminished scholarly output and significant losses in external research funding. How many faculty will move away if tenure is unavailable to new colleagues? How many will remain after the first faculty member is fired for teaching or researching a banned topic? Where will these faculty go? Excellent faulty can find new homes. In science, the ones who can move are the ones you lose; those are the people with large grants. PTR has been in place for years, and while the recruitment-retention argument is still valid, it is not new, and our critics may have dismissed it as unimportant. Higher education will need to formulate a new strategy to preserve tenure or invent something similar to conserve what we most value before those seeking to eliminate it develop a common focus and make it a national initiative.

The specific examples presented here are few of many I could have included. They have, or could have, the common element of the denial of due process in the dismissal or sanctioning of tenured or tenure-track faculty. Lawsuits are pending in many of these cases, and it will be interesting to learn their outcomes. If the punishments are upheld, it will essentially gut tenure in cases where faculty vigorously and publicly oppose campus administration, where they are the targets of outside interests, where their actions are uncomfortable for administration and where they inadvertently cause offense.

References

Academic Leaders Task Force on Campus Free Expression. (2021, November). Campus free expression: A new roadmap. Bipartisan Policy Center. https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2021/11/BPC-Report-Campus-Free-Expression_A-New-Roadmap.pdf

Prystowsky, R. J. (2021, Winter). Can you hear me now? The challenges and promise of viewpoint diversity. Liberal Education, 107(1). https://www.aacu.org/article/can-you-hear-me-now


N. Douglas Lees, PhD, is professor and chair emeritus of biology and former associate dean for planning and finance in the School of Science at Indiana University–Purdue University Indianapolis.