Gutting Tenure Protections in North Dakota?

A proposed bill would do just that

It is hard to know when to get excited about bills introduced in state legislatures. There is a lot of performative stuff with no chance of passage that nonetheless can get a lot of attention from activists and the press. When the House majority leader of a state legislature introduces a bill, however, I think you have to take that seriously. And the majority leader in North Dakota is now pushing a doozy of a bill.

Inside Higher Ed has a good rundown:

North Dakota's House majority leader has introduced legislation that would let presidents of at least two colleges, Dickinson State University and Bismarck State College, fire tenured faculty members based on those presidents' own, unappealable reviews.

The text of the proposed legislation can be found here.

A couple of key provisions:

3. If a president determines a tenured faculty member has failed to comply with a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member, unless the president specifically articulates why it is in the interest of the institution to continue to employ the faculty member despite the faculty member's failure to comply with the duties and responsibilities of tenure.
4. The president of an institution may enlist the assistance of an administrator at the institution to conduct a review but may not delegate responsibility for the review to a faculty member who is not an administrator.

. . . .

6. A review under this section is not appealable or reviewable by a faculty member or faculty committee. . . .

Apparently the design of this bill is motivated specifically by the fact that post-tenure review systems adopted at many state universities do not result in enough fired professors.

The world of American higher education may look very different in a few years.

Comments

[John F. Carr]

"If a president determines a tenured faculty member has failed to comply with a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member"

How is this different from terminating for cause?

[Dick King]

"How is this different from terminating for cause?"

No appeal.

-dk

[George]

Assistant Professors currently have no appeal if denied tenure, even on spurious grounds.

Tenure is one reason academic productivity declines with increasing faculty rank.

[DavidTaylor]

I've taught at 4 R1s, and in every one a denial of tenure can be appealed. And I read about such appeals in a number of other colleges and universities regularly.

The claim that tenure is one reason academic productivity declines with increasing faculty rank may be true in the most trivial senses. First, junior (i.e.g untenured) faculty are working their butts off to meet the often vague criteria for tenure, so it is no surprise that they may be the most productive members of a faculty. Second, junior faculty at early stages of a career are often bubbling with ideas, research agendas, grant ideas, etc, which get focused and narrowed as they mature in a position. It may look like they are never as productive as when they were young and new, but their later work may be more important and significant. Remember that the people who are evaluating your tenure case at every stage outside of your own department are people who have no expertise -- and sometimes no familiarity at all -- with your field, and so they tend to value quantity over quality. Third, tenured faculty, especially associate profs, are often the administrative workhorses of a college or university: their tenure allows them to participate in administrative roles without fear of losing their jobs, and they can, if they do a good job, use that kind of service as a big check mark on he path to full prof promotion. But that often means that their scholarship/research/publications may take a secondary role, and even teaching may be reduced by course reductions for administrative duties. Finally, the productivity of full profs is highly variable across disciplines: tenure and its protections might be a small price to pay for the academic freedom those highly productive full profs rely on. The stereotype of the coasting full prof seemed to me to be a relic of the glut of faculty hired in the late 1960s and early 1970s to accommodate large numbers of baby boomers entering college: tenure was often granted to seriously unproductive asst profs just to have a warm body in front of a class. I had two cases in my department, one a tenured faculty member who came up for tenure (before I was there) with only a single publication, a book review. The other had only a single article published at tenure time. If they were seriously unproductive as tenured faculty, it was because they started off as seriously unproductive, not because tenure lowered their productivity. Over the past 30 years we've become better at this, thank goodness, but the old stereotypes remain.

Apologies for rambling.

[bernard11]

Well, when you are terminated for case, in general you knew that this was a possibility when you took the job.

But if you take a tenure track job part of the appeal is the possibility of tenure. If you later get tenure, and then piss off the university President, and get fired, you are being deprived of something you were promised when you took the job.

And of course, some faculty members will have left their previous jobs to work at ND institutions with tenure as condition of going there.

That's how it's different.

[Dr. Ed 2]

I read it as referencing an articulated set of expectations, not even just for cause.

[Flight-ER-Doc]

No review? No way.

[Bob from Ohio]

"The world of American higher education may look very different in a few years."

Let's hope.

[Bob from Ohio]

My boss can fire me. I don't get an "appeal".

Special academic snowflakes will just have to adjust.

[Flight-ER-Doc]

Actually you do have an appeal: You can go to your bosses boss (unless he is the top guy).

[David Nieporent]

No, Bob is very unappealing.

[Sigivald]

Academia has destroyed academic freedom from within, and tenure exists solely to protect academic freedom.

As Bob noted, everyone else apart from some special appointments (judges and political offices) can be fired for cause, at any time, without independent review.

Academia has/had an exception for a good reason.

But they're doing their best to gut that reason on their own, so the exception will naturally follow.

[Tallman]

I agree, but it's important to remember who holds institutional power ATM. Short-term, the change will be used to drive the few remaining independent thinking, conservative, and/or center-left voices out of the academy.

[George]

The tenure process already does that. It is harder to get funding if you are conservative, harder to get research with findings that contradict the Left published, harder to get your published works' significance acknowledged by colleagues, and nebulous concepts like "collegiality" are used to weed out those whose ideas make their colleagues uncomfortable.

It is also harder to get hired. I know someone who was rejected by a department because his research on racism and health found a bigger impact on white ethnic minorities than on the black populaton in his sample. My own dissertation created some challenges in this way, as it found private sector accreditors were associated with better quality practices in medical labs that public sector regulators.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Tenure is such a bizarre concept. It presumes professors who have managed to tow the lion long enough are suddenly so wise that they should never again have to fear being fired by hateful bosses. Yet it is the younguns who contribute the most advances in STEM fields. Most everyone agrees that breakthroughs come in the first 5 or 10 years of a researcher's career.

If I were going to invent tenure, I'd do it the opposite: prevent new professors from being fired for 5 or 10 years. After that, perform or get a new job in some boring private industry after all your creativity has been sucked out of you by The System.

Or join a union. Seems to work for other government employees.

[bernard11]

An awful lot of the responses here are criticisms of tenure, which seems to address a different issue than whether it's a good idea to let university presidents simply revoke it once granted.

Whatever the defects of tenure, that's a terrible idea.

[Lee Moore]

IMHO anyone who has managed to tow the lion for any length of time at all is well worth keeping.

[Rev. Arthur L. Kirkland]

This is part of the sifting of America.

The downscale (Republican) states will push nonsense-based education, alienate strong teachers, promote old-timey dogma, resist progress, and rely on a poorly educated population.

The better (Democratic) states will operate our strongest research and teaching facilities, encourage public schools, prefer reason and science to superstition and dogma, embrace modernity, and continue to produce an educated citizenry with marketable skills.

The results will be predictable.

[Currentsitguy]

I'm sure you guys will corner the market and break new ground in the cutting edge world of trans non binary gender equity studies.

[Rev. Arthur L. Kirkland]

More important, we will continue to operate and encourage Harvard, Michigan, Berkeley, Yale, Penn, Wisconsin, Wellesley, Pitt, Minnesota, Connecticut, Swarthmore, and similar schools.

The culture war's losers will continue to operate and be limited by Liberty, Regent, Hillsdale, Ouachita Baptist, Wheaton, Bob Jones, Franciscan, Cedarbrook, BYU, Grove City, Oral Roberts, Ave Maria, Dallas, Grove City, and a hundred like them. Until replacement, anyway.

[Dr. Ed 2]

Kirkland reminds me of the people in the 1980s who considered Japanese cars to be junk.

[Rev. Arthur L. Kirkland]

The right-wingers I criticize were the people in the 1960s and 1970s who called Japanese cars “rice burners” (which was far nicer than what they called Jews, gays, and blacks), keyed those cars to teach the owners a lesson about “real America,” and forced the owners to park in distant lots to reinforce that lesson and illustrate their Christian morals.

Better Americans have diminished the influence of those losers in modern America.

[Kibitzer]

My perspective is affected by my own employment history. I made tenure at a major midwestern research university, but left five years later to go to industry. I had a variety of reasons, mostly personal, and hold my former employer in high esteem, but do not regret at all leaving academia.

My reaction to proposals of this sort is to ask how they will affect recruiting going forward. For example, what effect will these proposals have on salaries? Is the expectation that people will still be willing to sign up for faculty positions, when possibly the single largest benefit has been removed, if there are no corresponding changes in other terms and conditions? Would new faculty still have to go through the (very onerous) tenure process if the main point of the process has been removed?

It also seems wrong that the proposals would apply to (in fact, seem designed to apply only to) faculty who have already made tenure. It seems like a bait and switch.

[Dr. Ed 2]

I read it as enforcing an existing set of obligations.

[BadLib]

So faculty will enjoy "at will employment" just like the "little people" that provide goods and services that keep the lights on and food in their larders. What a tragedy.

[Kibitzer]

No tragedy if that's what's agreed in advance.

"So [worker category X] will enjoy [no pension] just like the "little people" that provide goods and services that keep the lights on and food in their larders." Would this work?

Most of us have vested benefits of one sort or another. It sets a bad precedent if employers can renounce vested benefits unilaterally.

[George]

It is already the case under state law in some states (like Indiana)

[Rev. Arthur L. Kirkland]

So faculty will enjoy “at will employment” just like the “little people” that provide goods and services that keep the lights on and food in their larders. What a tragedy.

Without tenure, do you believe UCLA would continue to employ Prof. Volokh? Do you believe Georgetown would retain Prof. Barnett?

Tenure mostly protects conservatives at legitimate, strong schools, which otherwise would find ugly and stale thinking -- especially nonsense-based bigotry -- grounds to encourage right-wingers to expand their employment horizons.

[Sarcastr0]

My god, the chip on your shoulder.

Most Profs are pretty normal and don't think of others as 'the little people.'

Some do, of course, but there are elitist assholes most everywhere.

[David Nieporent]

It is amazing how much of the MAGA Cinematic Universe is driven by feelings of inferiority and ressentiment.

[Rev. Arthur L. Kirkland]

That inferiority is not just a feeling.

[George]

A dirty secret many public universities try to hide is that tenure as commonly understood is illegal in a lot of states. For example, the Indiana Code specifically states that all employees at public universities are employed on an "at-will basis." While schools like IU and Purdue claim to offer limited tenure protections (termination only for cause or economic necessity) in fact no protections whatsoever legally exist.

I found out after my tenure fight at Purdue. I had CLEARLY exceeded the written standards for tenure and promotion to Associate Professor, but had gotten on the wrong side of a department chair wanting to eliminate our program from his department. He tried tampering with contracts to deny the ability to apply for tenure, retaliate against faculty who challenged him and their grad students (he SWAT'ed me after I filed a grievance), lied in his reply to the grievance committee (which I was not allowed to see until AFTER their decision), etc. I found no legal recourse because of the "at-will" provision of the state law governing the public university.

What the tenure process is most used for today is NOT protecting academic freedom, but rather eliminating faculty members who make colleagues uncomfortable - personally, professionally, etc. Aside from the above mentioned issues, I had run into the problem of being *too successful* too fast - in my first year, I received more external research funding than the rest of the department COMBINED, got national media attention for my research on public health preparedness, and had a lucrative consulting contract with DoD. I heard comments such as "maybe you ought to be a consultant instead of a professor," "your research funding shouldn't count because it 'fell into your lap' (agencies approached me asking me to take on specific projects rather than vice versa - a product of networking and two decades of work in the field before going into academia), 'you should stop taking those external contracts and apply for an internal PRF (Purdue Research Foundation) grant instead," and 'you need to stop bringing in outside speakers to speak to your health policy and management classes (like a longtime mayor to discuss how elected officials prioritize budget items or a local health department administrator discussing how to present issues to the population and elected officials).'

[santamonica811]

A few observations.
1. As many have already noted, this seems like a silly idea. It would, over the long haul, make universities in this state far weaker, in terms of quality of instruction. (As long as other states have robust tenure protections, N. Dakota will have to scrape the bottom of the barrel, in terms of hiring faculty who can’t find an acceptable tenure-track position in the other 49 states.)
2. I am not understanding the legality of this (if it becomes law). Sure, I see no legal issue with it being applied against new hires. But against people who signed an employment contract that is specifically based on the current tenure protections???…how can a contracted-for right be simply taken away. Does a state have the legal right to such interference in contracts? When my sister moved 13,000 km to take a professorship, she absolutely would not have uprooted her family without tenure…and “tenure” as it’s currently seen.
3. Even for those posters who have already chimed in with their approval of removing or reducing tenure protections as a general matter (which is fine–it’s a perfectly cromulent argument, although not in line with my own particular set of values), this particular law seems rather idiotic. Unless I am missing something.

From the actual language of the proposed law:

The bill would add new requirements that faculty members would be expected to meet under the reviews. They include, among other things:

“Generate more tuition or grant revenue than the combined total of the salary, fringe benefits, compensation and other expenses of the tenured faculty member plus all other costs of employing the faculty member, including employment taxes.”
“Comply with the policies, procedures and directives of the institution, the institution’s president and other administrators, the State Board of Higher Education, and the North Dakota University System.”
“Effectively teach and advise a number of students approximately equal to the average campus faculty teaching and advising load.”

So, the first requirement. You can be fired if you don’t raise enough grant money to cover your salary (including benefits and all other perks), or if you can’t show that you generated that same amount in tuition. Huh??? First off; I would say that many many academic fields do not have much grant money at all. If you’re teaching in the drama department, or in fine art, there’s very very little grant money out there. But, hey, maybe that just means it’s stupid to be teaching these subjects. [sarcasm] Second; how on earth does one show that extra tuition has been generated by this particular professor? Does she need to get notarized statements from a sufficient number of students? “Dear Administrator. I was planning on going to Harvard, but then I got accepted to East Podunk, and I couldn’t pass up the chance to take Mrs. Doe in “Intro to Chemistry.” That’s the only reason why I’m paying tuition at your institute of higher learning.” Is there another way of showing that this REQUIREMENT has been satisfied?

Second set of requirements seems pretty clear. Easy for a one-person judge-and-jury to manufacture a pretext for firing someone, of course. (I assume that, for many here, that's a feature and not a bug.) But at least it’s more clear than the first one.

On to the third. At my school, the average class size is (let’s say) 35 students. There are plenty of “Intro to___” classes that have 150 students. But, also, lots of upper division and graduate classes that have only a handful of student. It averages out to about 35/class. Okay, I am teaching a few of these “intro” classes. I easily satisfy this. But you are teaching almost all Ph.D. students, and your class size averages fewer than 10. You’re an amazing teacher, your students rave about you, they all get fabulous job offers upon graduating. You've helped make your department’s ranking rise to the top of the nation. AND . . . you now can be fired at will, since there’s no possible way you can satisfy this bizarre student-size requirement.

This just seems dumb.

[The Margrave of Azilia]

“how can a contracted-for right be simply taken away”

They should probably have included a clause in the Constitution on that subject, just to avoid situations like this.

Then, of course, it would be necessary to see that such a clause was actually enforced, not watered down by courts.

(I’ve avoided a /sarc tag in hopes that the obviousness of the sarcasm will make such a tag unnecessary)

[Bob from Ohio]

"hiring faculty who can’t find an acceptable tenure-track position"

We have a large over-abundance of PhDs in most fields. Most new hires are not getting tenure-track positions either.

South Dakota's biggest hiring problem, has been, and always will be, its location and weather.

[Rev. Arthur L. Kirkland]

The Dakotas’ biggest problem is the populace that remains after generations of brain drain..

[Rev. Arthur L. Kirkland]

First, how many strong candidates want to work in North Dakota? How many would even consider it as a last resort? North Dakota is already scraping at the bottom of the barrel. This proposal seems designed to make North Dakota schools worse.

Second, the "average teaching load" indicates this proposal was drafted by a partisan hack -- ALEC? -- rather than by anyone familiar with, let alone capable of trying to improve, higher education.

Third, the emphasis on grant revenue supports an inference this proposal was drafted by or designed to flatter socially inept STEM advocates who can't understand and despise anything that can't be resolved with 1s and 0s.

If North Dakota wishes to accelerate its rampant decline with this disaffected bullshit, maybe better Americans should not interfere with North Dakota's wallowing in its ignorance, backwardness, superstition, and bigotry. The only downsides are (1) the young people who would be afflicted before North Dakota before they would get the hell out of there and (2) the even greater subsidies an even weaker North Dakota would need from successful communities.

[Kibitzer]

The mention of "average teaching loads" and grant revenue indicate, on the contrary, that the proposal probably came indirectly from administrators. I've certainly seen schemes that are as or more detailed than this.

[Rev. Arthur L. Kirkland]

You figure school administrators -- rather than right-wing think-tankers, evangelical legislators, or ALEC -- drafted these provisions? That seems unlikely.

[Kibitzer]

Based on my experience, yes. I think it's likely that administrators drafted many of these provisions.

The main proposal would transfer a huge amount of power to the university President. Many of the remaining proposals are versions of proposals I saw from administrators.

[Rev. Arthur L. Kirkland]

How much experience do you have with respect to the provenance of legislative proposals?

[RhymesWithRight]

This will just move these lawsuits into federal court under the Civil Rights Act of 1871 -- where the president of the university will be sued for violating the civil rights of a professor under color of law.

[Moderation4ever]

While I am a little suspect that politic may have a large role in this bill, I am not sure if the idea of tenure itself has passed it usefulness. The primary goal of a professor should be to teach. If the pressure to publish, especially to get tenure, interferes with that primary mission then tenure is outdated. There seem to be plenty of think tanks and research institutes to employ those more interested in thought than in teaching. Maybe colleges and universities need more focus on teaching and professors should be assessed on those skills.

I speak on this as a student 45 years ago, but I saw a good chemistry professor, tenured, move to a different college because.his interest was in teaching, not grant writing and research.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Why empower researchers after they've passed their peak productivity? That encourages them to keep quiet and not rock the boat when they are at their most creative, and encourages them to speak out against the up and coming upstarts once they've settled down to a life of bureaucracy.

[mtkesq]

If it only worked that way in reality. More likely experienced professors with higher salaries will be forced out in favor of cheaper alternatives in order to balance budgets.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I think you're trolling worse than usual. Even you aren't that illiterate.

[Krayt]

A tenured professor will get right on that.

[Sarcastr0]

You're absolutely wrong about when someone is at their most productive.

Quantity is not quality.

Check out The Science of Science by Albert-László Barabási and Dashun Wang. It's quite statistically robust.

[Lee Moore]

I think the features George mentions are offered as reasons why it is hard for conservatives to get tenure. ie if you struggle to get hired to a non tenure job in the first place, if you struggle to get funding for your research, if you struggle to get published, and if you face a constant risk of being fired for political reasons while you still lack tenure, you will also struggle to get onto a candidate list for tenure.

Think of the olden days when it was hard for women to get hired for professional or management jobs, where they struggled to get recognised and promoted at the same pace as equally competent males and so on.

Even if the final process for getting a seat on the board is itself ruthlessly non-sexist, many capable women will have fallen by the wayside before they even make it to the starting gate.

If you discriminate ruthlessly enough during the winnowing process, you can have a squeaky clean process for board seats and still manage to keep all the women off the board.

And thus if in practice no conservatives make it through the winnowing, the fact that tenure would protect them if they did is, of no relevance. Tenure simply becomes a means to cement lefty dominance in the academy.