The Volokh Conspiracy

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Academic Freedom

Still Trying to Kill Tenure in Texas

Revised SB 18 has major problems


Lieutenant Governor Dan Patrick has been set on killing tenure at Texas state universities ever since the University of Texas faculty senate had the temerity to object to his proposed ban on critical race theory. SB 18 fulfills that mission. It passed the Texas state Senate, but is expected to fail in the House.

The House Education Committee is set to take up the bill today, but a new version the bill is now making the rounds. The substitute version of SB 18 would still destroy any meaningful tenure system in Texas, but it would do so more subtly. So subtly, in fact, that the Texas Tribune characterizes it as keeping tenure in Texas. The Texas Tribune has been suckered, and the Texas House might be as well. They should take a second look at the proposed substitute.

It is true that the new bill says that there will be tenure in system, but the details seriously subvert existing tenure protections. In particular, Section 3(c) defines the property interest in tenure as a single year salary. This is designed to allow university to fire tenured faculty without good cause so long as it pays out a single year salary. This is a mockery of a meaningful tenure system.

The bill also makes some significant modifications in what would qualify as good cause for terminating a faculty member at a state university in Texas. Section 3(c-1)(2)(A)(iv) allows professors to be fired for "moral turpitude." This is not an uncommon contractual provisions, but I do not believe that it is common in university tenure systems. I am extremely leery of how this might be used by university officials unhappy with a member of the faculty.

Part (v) of that section of the bill allows professors to be fired for violating laws or university policies. This kind of language has been popping up in tenure revision proposals in several Republican states, and is often part of the effort to ban the teaching of "divisive concepts" in university classrooms. It is intended to facilitate firing professors for teaching forbidden ideas. It would allow professors to be fired for minor policy violations, and encourage future policies to hem in faculty with restrictive rules backed by draconian penalties.

Part (vii) allows professors to be fired for "unprofessional conduct." This is much more sweeping than how university policies are generally written. I would not be confident about how this might be used by university officials looking to rid themselves of a disfavored member of the faculty.

It is no accident that this subsection concludes by saying that professors can also be fired for any "good cause as defined in the institution's policies." It both recognizes that the legislature is here creating unusual understandings of good cause, and invites future tinkering with tenure protections by university governing boards.

The section also authorizes universities to fire faculty when "there is actual financial exigency," which is a normal AAUP-recognized reason for laying off even tenured faculty. But then it adds, "or the phasing out of the institution's programs requiring elimination of the faculty member's position" One can imagine reasonable applications of such language, but one can also easily foresee abuses. There is no provision here for seeing whether tenured professors in defunct departments can be moved to other positions in the university, which is the standard practice endorsed by the AAUP. Moreover, the possibility that programs might be phased out but for reasons other than financial exigency invites political meddling with universities. Don't like the tenured faculty in Women's Studies? Just eliminate the department, and then the tenured faculty members can all be fired. Eliminating departments is more controversial than firing individual professors, but in the current environment this is an easy loophole to exploit.

This version of SB 18 is not as awful as earlier versions, but it would leave Texas state university faculty with a much weakened tenure system full of holes that could empower university officials to rid themselves of troublesome professors. The Texas Tribune seems to have been suckered by the new bill. The Texas state House should not.