Tenure Is under Attack Once Again, Part 2: Actions of State Legislatures, Governing Boards, and Campus Administrations
This article is the second in a series of four that provides an update on the activities and progress of those groups that want to eliminate tenure. Part 1 focused on why higher education is vulnerable to these attacks at this time. This article will examine 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 fail to recognize the due process requirement granted through tenure. Part 3 will give some examples of how students have played roles in the loss of academic freedom and will give an example of one state that found a way around legislative interference. Part 4 will discuss some steps we can take to deflect the attacks on tenure.
Past and ongoing legislative threats to tenure
External threats to tenure have escalated in recent years, and many people anticipate they will continue to do so, especially in view of the economic impact of the pandemic. In 2016, Wisconsin modified the University of Wisconsin System’s strong tenure policy by removing the agreement from state law and then rewriting it to make financial impact the primary consideration in closing or modifying programs and letting tenured faculty go (Flaherty, 2015). The change was justified by the flexibility the UW System Board of Regents needed to deal with a pending $250 million reduction in state support. In 2017, the Missouri legislature introduced a bill that would have banned tenure (Flaherty, 2017). The rationale for the bill was that the lifetime employment guarantee coupled with the potential for diminished teaching performance would harm students. The bill did not pass. Early in 2021, the Kansas Board of Regents voted unanimously to suspend tenure until December 2022, to give themselves flexibility in dealing with the financial impact of the pandemic (Pettit, 2021a). Four of the six public universities immediately said they would not use this authority, and Kansas University (KU) and the KU Medical Center recently announced that they, too, would not use this authority.
Recent legislative and board threats to tenure
A bill to ban tenure at the three public institutions in Iowa came before the Iowa House in 2021 after failing in previous years to pass out of committee (Kelderman, 2021). While it did not pass, it seems it will be reformulated for a return in the future. The initiative was “driven in part by concerns about the treatment of conservative students by those schools,” with Republicans claiming instances in which the universities “violated conservatives’ free speech rights” (Gruber-Miller, 2011). At its September 2021 meeting, the Board of Regents of the University System of Georgia proposed significant changes to the statewide post-tenure review policy for four-year institutions (Flaherty, 2021a). The original draft contained some inadvertent (or was it?) language related to tenure that would allow for the removal of tenured faculty for unspecified reasons other than those listed for “cause” in existing documents. These removals would not have been subject to due process protections. The offending language was removed prior to a vote on October 13, 2021, and a new version of post-tenure review is now in place (Pettit, 2021b). The major changes are the addition of a fourth area (“student success activities”) of all faculty reviews, including those for promotion and tenure, and the removal of elements of due process in the instance of a post-tenure review case that has gone through the three-year remediation cycle without satisfactory results as determined by the chair, dean, and appropriate faculty body. It is in the final step that the change has been made. Instead of the former due process—an appeal hearing and input from a faculty committee—the president will make the decision on the sanctions. Some may consider this a minor change, but the faculty in Georgia and the American Association of University Professors are extremely concerned.
The University of Hawai‘i Board of Regents is considering changes from the Hawai‘i legislature that would affect who is eligible for tenure (only librarians and faculty who teach courses; research and extension faculty would not be eligible), link tenure-track hires and tenure decisions to student enrollment and unit “success,” and would allow administration input into the post-tenure review process (Flaherty, 2021b). These proposals have generated protests from all 10 state campuses, and the board referred them to a special committee on which all the regents serve. The changes have the potential to impact the tenure system here in meaningful ways. The committee’s report is much anticipated by all parties.
A final legislative assault on tenure was initiated last November in South Carolina, where Republicans pre-filed two bills for consideration during the upcoming session in spring 2022 (Bauer-Wolf, 2021). HB 4522 (the “Cancelling Professor Tenure Act”) would ban tenure for faculty starting on January 1, 2023, and replace it with contracts that extend up to five years. It also stipulates that all faculty will teach two graduate or undergraduate courses each fall and spring beginning in 2024–25, with the exception of faculty who work exclusively in graduate programs (e.g., medicine, law, and similar schools). Even more ominous is a section of the bill that allows the institution to terminate faculty members who are under contract and who violate “certain policies.” The second bill bans the teaching of certain concepts (e.g., critical race theory) and thus is regarded as frontal assault on academic freedom. There will be more on these bills coming soon as together they reach much further in restricting higher education than others have.
Another partisan action has been taking place in Idaho. While not a tenure issue per se, it does indicate the disregard for higher education and can be easily extrapolated to the subject of tenure. The conservative board of a community college waged a battle with the institution over diversity training, its response to the pandemic (accepting masking and social distancing), its efforts to promote social justice, and similar topics (Pettit, 2021c). After months of requests from the board chair for trivial institutional and personal data and intrusions into matters routinely handled at the institutional level, the president of the institution appealed the board chair’s actions to the entire five-member board. This action culminated in his termination, without cause, as president of the community college (Pettit, 2021d). Those voting in favor (the vote was 3–2) of the removal did not provide a reason for their action. A few weeks later, by the same vote of 3–2, the board approved the appointment of the wrestling coach as interim president of the community college. While this is not a tenure case, it causes one to wonder what would become of a faculty member, even one with tenure, who earned the board’s ire.
Individual campus violations of tenure and academic freedom
Beyond the actions of legislatures, governing boards, and other powerful external entities, there are some alarming instances in which colleges and universities themselves have violated the protections offered by tenure. There is the case where Daniel Pollack-Pelzner, a 14-year full professor who held a named professorship, was fired during a campus meeting via Zoom when the university terminated is internet access (Bartlett & Stripling, 2021). This resulted from several months of back-and-forth between the faculty member and the university president regarding the university’s inaction amid several complaints of sexual misconduct that students had lodged against members of the board. The professor had then gone public with his allegations, an action that prompted his firing. Although the university is private, the granting of tenure affords faculty the protection of due process in cases of dismissal. He was not provided the opportunity to make his case before a faculty committee of peers. A lawsuit is currently pending in this case (Manning, 2021).
A second example involves Garrett Felber, who in 2020 was a fourth-year, tenure-track assistant professor specializing in African American history at the University of Mississippi (Zahneis, 2020). In the spring, Felber received a strong, positive review from the chair that praised his teaching, research, and outreach work. In October, while on leave as a Harvard Fellow, the chair notified him that a grant he had won had been rejected by the chair on behalf of the department. The grant was for the continuation of a project on incarceration in Mississippi that had been initially funded by a grant for which the university lauded Felber. The reason for the rejection was that the project was “political” and not “historical.” Felber would not agree to speak with the chair about the grant issue unless the reasons for the denial were provided to him in writing and unless the department faculty, in whose name the rejection was made, also submitted their reasons for the denial. It turns out that the department faculty had not heard about any of this. The chair then sent a one-year notice of termination citing as a reason his failure communicate with the chair.
Felber was an activist who was undaunted in identifying issues on campus but, according to department faculty, not to a level that should raise concern. The grant rejection seems central to the case, and the antiracist nature of the project may have been uncomfortable for individuals off and on campus. In July 2021, the university reached a settlement with Felber, but as is usually the case, the terms were undisclosed (Willingham, 2021).
Bartlett, T., & Stripling, J. (2021, April 29). Everybody is a target right now. The Chronicle of Higher Education. https://www.chronicle.com/article/everybody-is-a-target-right-now
Bauer-Wolf, J. (2021, November 22). South Carolina Lawmakers Propose Ending Tenure at State’s Public Colleges. Higher Ed Dive. https://www.highereddive.com/news/south-carolina-lawmakers-propose-ending-tenure-at-states-public-colleges/610483
Flaherty, C. (2015, June 1). Trying to kill tenure. Inside Higher Ed. https://www.insidehighered.com/news/2015/06/01/wisconsin-faculty-incensed-motion-eliminate-tenure-state-statute
Flaherty, C. (2017, January 13). Killing tenure. Inside Higher Ed. https://www.insidehighered.com/news/2017/01/13/legislation-two-states-seeks-eliminate-tenure-public-higher-education
Flaherty, C. (2021a, October 4). Tenure under threat in Georgia. Inside Higher Ed. https://www.insidehighered.com/news/2021/10/04/tenure-under-threat-georgia
Flaherty, C. (2021b, November 2). Tenure for teachers only. Inside Higher Ed. https://www.insidehighered.com/news/2021/11/02/professors-hawaii-face-major-changes-tenure-system
Gruber-Miller, S. (2021, April 1). Iowa legislature won’t ban tenure at public universities this year after bill fails to advance. Des Moines Register. https://www.desmoinesregister.com/story/news/politics/2021/04/01/iowa-legislature-bill-ban-tenure-public-universities-professors-fails-advance/4836676001
Kelderman, E. (2021, February 3). In Iowa, public colleges scramble to ward off claims of bias and threat to tenure. The Chronicle of Higher Education. https://www.chronicle.com/article/in-iowa-public-colleges-scramble-to-ward-off-claims-of-bias-and-threat-to-tenure
Manning, R., Fired Linfield University Professor Files Lawsuit, Alleging Illegal Retaliation, Oregon Public Broadcasting, July 12, 2021. https://www.opb.org/article/2021/07/12/fired-linfield-university-professor-files-lawsuit-alleging-illegal-retaliation
Pettit, E. (2021a, January 21). Kansas regents make it easier to dismiss tenured professors. The Chronicle of Higher Education. https://www.chronicle.com/article/kansas-regents-allow-sped-up-dismissals-of-tenured-faculty-members
Pettit, E. (2021b, October 13). Over AAUP and faculty objections, Georgia regents approve changes in post-tenure review. The Chronicle of Higher Education. https://www.chronicle.com/article/over-aaup-and-faculty-objections-georgia-regents-approve-changes-in-post-tenure-review
Pettit, E. (2021c, March 15). A county turns against its college. The Chronicle of Higher Education. https://www.chronicle.com/article/a-county-turns-against-its-community-college
Pettit, E. (2021d, September 23). A president said a trustee was overstepping. Months later, the president was fired. The Chronicle of Higher Education. https://www.chronicle.com/article/a-president-said-a-trustee-was-overstepping-months-later-the-president-was-fired
Willingham, L. (2021, July 30). Terminated professor settles with University of Mississippi. https://www.clarionledger.com/story/news/politics/2021/07/30/terminated-professor-garrett-felber-settles-university-of-mississippi/5427426001
Zahneis, M. (2020, December 17). His university celebrated his success. Then it fired him. The Chronicle of Higher Education. https://www.chronicle.com/article/his-university-celebrated-his-success-then-it-fired-him
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.