With clock ticking on legislative session, Texas Democrats delay debate on university tenure bill

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Texas House Democrats successfully delayed debate Thursday on the House’s version of a bill meant to put guardrails on faculty tenure at public universities, kicking the legislation back to the Higher Education Committee.

Just as Rep. John Kuempel, R-Seguin, started to lay out his version of the legislation, Rep. Ron Reynolds, D-Missouri City, raised a point of order — a parliamentary procedure used to delay or kill legislation on a technicality — arguing that the analysis of the legislation was misleading.

In their point of order, Democrats argued that the bill analysis says that university governing boards must file a copy of their policies and procedures related to performance reviews of tenured faculty to the Texas Higher Education Coordinating Board. But the new legislation would also require university system leaders to provide their tenure policies on other areas like granting tenure, reasons for dismissal and due-process procedures, which is much broader information than the analysis states.

After the House recessed for the day, the Higher Education Committee voted the bill out of committee again along party lines. The bill now heads to the Calendars Committee to get back on the House floor for a vote. The House has until May 23 to give preliminary approval to Senate bills.

If the legislation goes back to the House floor and is voted out by the full chamber, the House and Senate would have to agree on the version that emerges from closed-door meetings before sending the bill to Gov. Greg Abbott. The two chambers have until May 26 to come to agreement.

The Senate, led by Lt. Gov. Dan Patrick, voted on a version of the bill that would eliminate tenure altogether, arguing that it has allowed “woke” faculty to spew ideology because they feel they are protected by tenure, which provides continuous employment. The House version, as approved by the Higher Education Committee, instead enshrines tenure policies in state law.

Faculty have largely opposed both versions of the bill, arguing that while the House option is better than the Senate proposal, it includes various provisions that could effectively gut tenure protections, making it difficult to recruit and retain top faculty who help the state’s universities rise in prestige and national rankings.

“A robust system of tenure is the surest means of protecting academic freedom so that truth might be pursued in the classroom, in the archives, and in the lab,” leaders of the American Association of University Professors wrote in a news release. “The tenure system remains the foundation of academic freedom in the United States, and is as important to students and society at large as it is to the faculty who work under its protection.”

Tenure is a nearly century-old practice used by universities across the country that provides professors with continued employment, allowing them to pursue long-term, independent research and teaching free from political or administrative interference. Tenured faculty cannot be fired without good cause, and they must receive due process if they are terminated.

Patrick vowed to ban tenure in Texas last year after a group of University of Texas at Austin faculty issued a resolution in defense of academic freedom, the idea that faculty can teach and speak freely about their fields of study without political or outside influence. Specifically, their resolution was in response to the Legislature’s decision in 2021 to ban the teaching of “critical race theory” in K-12 schools. Patrick has repeatedly accused the faculty of stoking “societal division,” claiming the professors felt they were above the law.

Sen. Brandon Creighton, R-Conroe, carried the Senate legislation, which would eliminate tenure for all professors who have not received the status by Jan. 1, 2024. He described tenure on the Senate floor last month as “outdated,” saying it allows faculty to ruin the “brand” of a university.

The House version of the bill approved by the committee replaced the Senate version with a proposal that would instead enshrine tenure in state law.

Kuempel said during the House committee hearing on the bill last week that he believed tenure “needs to be offered.” His bill defines tenure in state statute as “the entitlement of a faculty member of an institution of higher education to continue in the faculty member’s academic position unless dismissed by the institution for good cause in accordance with the policies and procedures adopted by the institution,” which reflects the common definition of tenure in higher education.

Under Kuempel’s bill, much of how universities currently award tenure would remain intact. University regents would have to clearly lay out how they grant tenure and how they evaluate tenured faculty, and include required reasons to terminate a professor such as “professional incompetence,” “conduct involving moral turpitude” or “unprofessional conduct that adversely affects the institution.”

But faculty have raised concerns about a portion of the bill that they worry might gut the long-term job security that tenure provides. Under the 14th Amendment, Americans are entitled to due process if the government tries to take away their property. In 1972, the U.S. Supreme Court ruled that a tenured faculty member’s right to continued employment qualifies as property interest, meaning it can’t be taken away without a documented reason for the termination, a hearing and an opportunity to appeal.

But the House version of Senate Bill 18 includes a provision that says tenure creates a property interest equivalent only to one year’s salary. Faculty and Constitution experts worry that would mean a university could fire a professor without due process if they paid them a year’s salary, which faculty and constitutional experts have flagged as a potential erosion of their rights.

“[T]he protection provided by the committee substitute for SB 18 would be tenure in name only; and could have the same consequences as the elimination of tenure itself,” leaders of the Texas Conference of the AAUP wrote in a news release.

Faculty from across the state warned lawmakers in committee hearings in the House and Senate that universities already have rigorous systems in place to grant and revoke tenure. They also expressed concern that the acceptable reasons listed in the House version to terminate a professor are vague and could be easily weaponized to fire faculty who say or do something state or university leaders disagree with — a situation that tenure is supposed to protect faculty from.

SB 18 is one of a few of Patrick’s legislative priorities that was watered down by the House. The lower chamber also made changes to Senate Bill 17, which would ban diversity, equity and inclusion offices in state colleges and universities. Kuempel’s version of that bill would allow for such programs when they are required by a private or federal grant or an accrediting agency. The House is expected to take a vote Friday on the version of SB 17 that the Higher Education Committee approved.

Disclosure: University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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