The Volokh Conspiracy
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State "Higher Ed Reform" Roundup: Texas
Legislative showdown looming on tenure and academic freedom
Republican state legislatures across the country are debating significant reforms in state university systems. Some of the reform proposals are fairly modest, but others would substantially transform how higher education work in public universities. In several instances, those bills are now moving toward some resolution, and so a series of posts checking in on where things stand seems in order.
Next up is Texas. Last year the powerful Lieutenant Governor of Texas, former TV sportscaster Dan Patrick, declared that that the time had come to end tenure at public universities in the Lone Star State. The lieutenant governor is the presiding officer in the Texas state senate and exercises substantial formal and informal power in that chamber. Patrick has not forgotten about his vow, and it seems likely that some very dramatic reform bills will pass the Senate. The prospects that the proposals will be defeated in the House and in the governor's mansion are not at all clear. The Texas legislature is also set to pump additional funds into the state universities, but these structural reform bills work at cross-purposes with the governor's goal of creating more premier public universities in the state.
There are three bills of particular interest (though there are some other measures affecting higher education that have also been designated as legislative priorities). The Texas AAUP also have a convenient bill tracker.
Senate Bill 16, sponsored by the chair of the Senate Jurisprudence Committee, is a version of the anti-critical race theory or divisive concepts bills that have been adopted relating to primary and secondary education and that Florida extended to higher education in the Stop WOKE Act (which was subsequently enjoined by a federal district court). SB 16 is much briefer than the Stop WOKE Act. It prohibits state university professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief."
This language might have a better time in court than the Stop WOKE Act, which went far beyond attempts to "compel" belief. Nonetheless, the bill is concerning. The penalty for violating the act is severe—immediate termination. It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.
In floor debate, the bill sponsor says that a professor would violate the law if he says, "if you wanna pass my class, then you have to say that." The statement appears to come in response to questions about whether, for example, a biology professor could require students to affirm evolution as the origin of human beings. A biology professor required such an affirmation for students wanting a letter of recommendation to medical school or graduate study until the policy came to public attention. Not great, Bob.
The bill is likely to pass the Senate tonight and head over to the House.
Senate Bill 17, sponsored by the chair of the Senate Education Committee, is now before that committee. That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."
The AAUP has criticized all of these components of the bill, including the institutional pledges which that organization regards as catering "the right–wing claim that universities are too liberal."
From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.
The shift in governing authority to the trustees is troublesome, however. It would cut faculty out of the presidential search process and require board approval of all administrator hiring down to the assistant dean level and of all general education courses. Shared faculty governance in the appointment of senior leadership is a longstanding desire of faculty advocacy groups and does have meaningful implications for academic freedom and the academic functioning of the university. Removing faculty from the process in hiring university presidents will set up unnecessary conflicts and blunders down the road. Pushing trustees to insert themselves deep into the academic functioning of the university is just inviting problems from a scholarly and academic freedom perspective.
Senate Bill 18, also sponsored by the chair of the Senate Education Committee, has passed the committee and is now on the Senate floor. This is the big enchilada. The bill would prohibit state universities from granting tenure to any member of the faculty hired after September 1, 2023. It allows the board of trustees to create "an alternate system of tiered employment status for faculty members" so long as everyone must undergo annual performance evaluations. Faculty currently on the tenure track will no longer be eligible for "any type of permanent employment status." Faculty who currently have tenure would potentially be subject to more aggressive post-tenure reviews, but that is unclear.
This is the most radical challenge to tenure with any prospects for adoption in any state legislature at the moment. It would have a transformative effect on Texas state universities and would seriously imperil academic freedom at those institutions. If Texas were to pass SB 18, it seems quite likely that the post-tenure review system would be next up for reconsideration and that multiple other red states would follow Texas's lead in gutting tenure at their public universities.
SB 16 is not great, and SB 17 has some problems, but SB 18 is the atomic bomb that would blow up Texas higher ed.
UPDATE: The Texas state senate did pass SB 16, and it is now before the House.