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Tenure Is under Attack Once Again, Part 3: Student-Based Challenges to Academic Freedom and Dealing with Legislatures and Boards

Legal Issues Promotion, Tenure, and Evaluation

Tenure Is under Attack Once Again, Part 3: Student-Based Challenges to Academic Freedom and Dealing with Legislatures and Boards

This article is the third in a series of four that provides an update on the activities and progress of those groups who want to eliminate tenure. Part 1 focused on why higher education is vulnerable to these attacks at this time, and 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. This article 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.

Student-instigated denials of academic freedom and due process

The examples listed in this section involve academic freedom and due process issues where what professors say and do in classes cross paths with DEI initiatives. Faculty may use examples or language they have used in the past without comment or complaint only to have some students become so upset that they demand the faculty member be sanctioned or even fired. University administrations need to formulate, in collaboration with faculty, policies for situations like this that are fair, reasonable, and in keeping with the tenets of academic freedom. I would hope that incidents like the ones described below will become less common as faculty carefully review their materials in new light and as students tone down their sensitivity level.

The first example involves Richard Paxton, a tenured professor in his 16th year of teaching at Pacific University who was suspended for “violating the civil rights of his students” through comments he made in class (Powell, 2021). His comments on gender and ethnic stereotyping were related to the class subject and, in the case of an offending anecdote, was one he had used every year without complaint. Those supporting the professor do so because he was denied due process. Paxton filed a lawsuit but passed away in late December. The lawsuit will proceed, however.

An additional example is the case of Bright Sheng, a renowned professor of music composition (he is a two-time Pulitzer finalist and MacArthur Fellow) at the University of Michigan, was removed from his class when students complained after he showed them the 1965 film version of Othello, featuring Lawrence Olivier wearing dark make-up (blackface) to reflect the character’s North African heritage (Hilu, 2021). His purpose in showing the film was to demonstrate how a play could be converted to an opera. Sheng immediately apologized, but the apology drew more criticism. The dean then convinced (pressured?) Sheng to remove himself from class. The university initiated a formal investigation of Sheng but later withdrew it. He has yet to return to teaching his class. Many university people, as well as external organizations and individuals, are lining up behind Sheng on this case, which is about academic freedom (to teach the desired content) and due process.

The final case I will cite is that of Jason Kilborn, a tenured professor of law at the University of Illinois Chicago. At the end of the fall 2020, semester he wrote an exam question about employment discrimination, a common theme in federal civil litigation, for his civil procedures class (Flaherty, 2021). The scenario included a section of text where the one of the employer’s people referred to the plaintiff using two volatile, derogatory words (one based on race and the other on gender) that were listed only by their first letters. He had used the question on past exams without incident but the time it was different. Some of the students complained, and the Black Law Students Association (BLSA) quickly demanded Kilborn’s termination, citing his discriminatory actions. Following a four-hour conversation between Kilborn and a BLSA representative, his dean placed him on paid leave, cancelled his spring classes, and banned him from campus. The BLSA filed additional charges from unnamed students; initially, these were successfully refuted by Kilborn or deemed unsubstantiated, and he was allowed back on campus and, after a planned fall sabbatical, scheduled to return to the classroom in the spring.

In a follow-up article for The Chronicle, Northwestern University law professor Andrew Koppelman (2021) wrote that the UIC School of Law “disgraced itself” in “its persecution” of Kilborn. He stated that UIC’s Office of Access and Equity is largely responsible for this situation through a written communication with Kilborn that was filled with contradictions, misjudgments, and deliberately false and misleading statements. Kilborn reached a settlement with his school, but the saga goes on, with the BLSA continuing its attacks and demands and the school reneging on an agreement it had made with Kilborn and his attorney (Jacobson, 2021). (Kilborn would inform his dean of any student complaints and would have his classes recorded in exchange for no punishment; he refused mandatory diversity training, leaving it as recommended, and a nondisclosure agreement). Recently, the school also informed Kilborn that he would be relieved of his spring 2022 teaching duties and would instead enroll in a five-week online course on classroom diversity, after which he would meet with an instructional advisor to discuss and review supplementary materials. UIC has stated that these requirements are not punitive. Based on Kilborn’s reviews of the material and his reflection pieces on the modules, the instructional advisor will make an assessment as to his progress. Rather than comply, Kilborn has filed suit.

These are highly unusual times in higher education, with pressure coming from both the left and the right, from students and faculty, from members of boards and legislatures, and from other influential individuals. All this is taking place while we are still reeling from the pandemic and facing severe budget constraints due to enrollment shortfalls. Unfortunately, some of our pressured administrations have reacted too quickly and by appeasement, which has seriously eroded academic freedom and damaged faculty morale. The pressure results from several potentially negative outcomes for institutions, including accusations of being insensitive or even racist, the effects of bad press on student and faculty recruitment, the loss of donor income, and fears that they will be harmed financially by legislatively based budget reductions. As we can see in the responses to the examples above, the answer will not be found in trampling the academic freedom of the faculty. Doing so creates more critics and appeases no one.

So, what is the answer? What can we do to dissuade legislatures and boards from the notion that eliminating tenure will lead to improved universities? Just as important, what can we do to deal with internal critics—whether faculty, students, or administrators—to make certain that their actions do not make working through this difficult period more challenging than it already is?

Dealing with legislative and board intrusion

This is a responsibility of the top level of the institution, a position far from my experience. But I have noted some success in a very conservative state. Indiana rarely gets presidential candidate visits; both major parties consider it Republican by default. Yet this summer Indiana University (IU) was the first public system in a red state to announce COVID-19 vaccine mandates for faculty, staff, and students and was the first to win a court challenge to the mandates (Basken, 2021). As it turned out, IU was the only public institution in the state that required vaccinations for all constituents. Although there were “difficult conversations” behind the scenes, this generated no political backlash! Say what?! This outcome was due to a long-term, non-adversarial relationship that IU president Michael McRobbie developed and nurtured with the legislature. The Board of Trustees, whose members are largely appointed by the Republican governor, was persuaded to focus on the university mission and allowed IU latitude with the vaccine requirement. The trust established over the years with both groups was critical in allowing the university to do the right thing for its constituents. There have been no moves on tenure in Indiana to date.

Recommendations here start with reaching out to key legislators—friends, foes, and those on important committees—by inviting them to campus for a day of learning about the university. The president will preside and have critical administrators present (e.g., deans of professional and other large schools and government relations office staff). The overall objective is to tell them what you have done with their appropriation dollars and those derived from student tuition—that is, your impact on the state economy, new programs in play or planning, the number of degrees granted (emphasis on undergraduate degrees in STEM) and percentages of graduates working in the state, and, if applicable, the level of external funding that faculty have earned (break out federal support). Refrain from requesting additional resources. Because of scheduling difficulties, you may have to repeat the event. Make certain you have everyone’s email address, including those of the legislators’ assistants, and resend your information to all electronically. One final thing: make sure that someone can address, with respect and candor, the points that your critics have been making (low graduation rates, student debt, freedom of expression, critical race theory, and so forth)—just in case they ask. Include efforts underway or planned to improve or rectify these weaknesses.

Before they depart, offer them tours of campus. Many may never have seen it! Tell everyone that they will receive updates on campus progress, answers to questions that were not fully addressed, and new items. Your university governmental liaison can handle these. Thank them often for their support.


Basken, P. (2021, September 21). Just-retired Indiana president sees path out of partisan division. Times Higher Education. https://www.timeshighereducation.com/news/just-retired-indiana-president-sees-path-out-partisan-division

Flaherty, C. (2021, November 10). Bad education. Inside Higher Ed. https://www.insidehighered.com/news/2021/11/10/when-suspending-professor-isnt-enough

Hilu, C. (2021, October 15). Michigan professor survives Cultural Revolution, succumbs to campus wokeness. National Review. https://www.nationalreview.com/2021/10/michigan-professor-survives-cultural-revolution-succumbs-to-campus-wokeness

Jacobson, W. A. (2021, December 26). The cruel and unusual punishment of Prof. Jason Kilborn by U. Illinois-Chicago John Marshal School of Law. Legal Insurrection. https://legalinsurrection.com/2021/12/the-cruel-and-unusual-punishment-of-prof-jason-kilborn-by-u-illinois-chicago-john-marshall-law-school

Koppleman, A. (2021, November 17). Yes, this is a witch hunt. The Chronicle of Higher Education. https://www.chronicle.com/article/yes-this-is-a-witch-hunt

Powell, M. (2021, June 1). Suspended professor sues Pacific University. Oregon Public Broadcasting. https://www.opb.org/article/2021/06/01/pacific-university-richard-paxton-lawsuit-suspension

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.


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