Texas senators move to ban tenure and diversity initiatives

State Senate has already passed one of three bills that would end tenure, force universities to fire professors who “attempt to compel” certain beliefs, and ban what the legislation defines as diversity, equity and inclusion programming

April 17, 2023
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Texas senators are advancing three bills that would end tenure for future professors; ban what the legislation defines as diversity, equity and inclusion activities; and force colleges and universities to fire professors who “attempt to compel a student” to adopt a belief that any “social, political or religious belief is inherently superior to any other”.

All three affect public institutions only. That third bill, Senate Bill 16, passed the Senate 18 to 12 on 12 April and is now in the House of Representatives. All Democrats voted against it, all present Republicans voted for it and one Republican senator, Phil King, was absent.

The other two bills, Senate Bill 17, on DEI, and 18, banning tenure, have already passed the Senate Education Committee.

None of the bills’ original lead sponsors returned requests for comment. The Texas Tribune, which has been reporting on the bills, said that the University of Texas at Austin did not respond to a question about its interpretation of the legislation’s impact if it passes.

Florida has garnered much attention for Republicans’ targeting of DEI there, but Texas’ recent legislation reinforces that another large Southern state is putting it in the crosshairs.

Antonio Ingram, assistant counsel for the NAACP Legal Defense Fund, said, “It’s important to look at these bills in the context of what they would be doing as a trifecta.” He called them an attack on “multiracial democracy” in a state that has become majority minority and also noted the severity of the bills’ punishments.

SB 16’s required firing for attempts to “compel” beliefs would be despite tenure for any newly contracted professors – and SB 18 would bar tenure for professors anyway if they don’t have it by 1 September 2023. SB 17, which bars what the legislation defines as DEI programming and training, would render a university ineligible for state money for a whole fiscal year if the state auditor determined it had “spent state money in violation”.

Senate Bill 16 includes the passage: “A faculty member of an institution of higher education may not compel or attempt to compel a student enrolled at the institution 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.”

It then says: “If an institution of higher education determines that a faculty member of the institution has violated this section, the institution shall discharge the faculty member.”

“It could be you have a student who is disgruntled with their grade,” Mr Ingram said. “And they report to, you know, their school, ‘My professor is compelling me to believe certain topics, I want to bring a grievance.’ The only remedy for violating Senate Bill 16 is termination. There are no progressive penalties.”

Joe Cohn, legislative and policy director for the Foundation for Individual Rights and Expression, said “removing tenure is an extraordinary penalty”.

“I think that there’s little doubt that the state can take measures to protect freedom of conscience, but they should be listening to stakeholders to do it carefully, with proportional consequences,” Mr Cohn said. He said “reasonable people” could disagree on whether SB 16’s consequence, and it being a one-strike offence, is proportional.

He said SB 16 would be strengthened if lawmakers changed it to say, more specifically, that professors couldn’t compel students to “personally express” a belief that those students do not hold.

SB 18 is the simplest bill, saying, “An institution of higher education may not grant an employee of the institution tenure or any type of permanent employment status” after 1 September.

It would allow universities to establish “an alternate system of tiered employment status for faculty members, provided that the system clearly defines each position and requires each faculty member to undergo an annual performance evaluation.” It doesn’t specify further how that could work.

Mr Cohn urged the rejection of this legislation. “I think the state should be extremely hesitant to end tenure moving forward,” he said. “You know, academic freedom is the lifeblood of higher education, and institutions of higher education can’t thrive in an environment where faculty don’t have strong academic freedom rights. FIRE has never taken the position that tenure is the only way to protect faculty’s academic freedom, but the state hasn’t proposed anything else to fill the void.”

“They’re just revoking tenure,” he said. “And in our experience, tenure has been one of the most important tools to defend the free speech and academic freedom rights of faculty who have disfavored views. And legislators who are concerned about the shrinking number of conservative voices in the academy should be wary about stripping one of the most effective protections that has prevented the academy from screening out dissenters.”

Jeff Blodgett, president of the Texas Conference of the American Association of University Professors, said, “Tenure is critical for preserving academic freedom, and the one mistake that some of the legislators make…is that they seem to think that faculty are not evaluated every year, and they are.”

Adam Kissel, visiting fellow in higher education reform at the Heritage Foundation, has supported SB 18. He said that “tenure is this awful cliff” that effectively limits academic freedom. He provided his testimony in support of SB 18 to senators late last month.

“Tenure is a make-or-break, all-or-nothing decision made first of all by their colleagues in their academic department,” Mr Kissel said of junior faculty members. “If a junior scholar fails to earn tenure within about seven years, he is normally expected to leave the institution. As a result, junior faculty walk on eggshells for years. If they are too successful, they risk the jealousy of colleagues. If they are too innovative in their scholarship, they risk alienating their colleagues. If they are too outspoken about anything, or if they do not mimic their colleagues’ political and social views, junior faculty risk alienating the people who are going to vote on their future.”

SB 17 would ban “influencing hiring or employment practices at the institution with respect to race, sex, color or ethnicity, other than through the use of color-blind and sex-neutral hiring processes in accordance with any applicable state and federal antidiscrimination laws”.

It would also ban “promoting differential treatment of or providing special benefits to individuals on the basis of race, color or ethnicity” and “conducting trainings, programs or activities designed or implemented in reference to race, color, ethnicity, gender identity or sexual orientation, other than trainings, programs or activities developed by an attorney and approved in writing by the institution’s general counsel and the office of the attorney general for the sole purpose of ensuring compliance with any applicable court order or state or federal law”.

That bill generally says the ban does not apply if federal law requires something.

“DEI fundamentally has a remedial aspect,” Mr Ingram said. He said the University of Texas at Austin “didn’t let in Black undergraduate students until the 1950s, and so when you have that legacy of…state-sponsored exclusions, of course there are still gross disparities in Black and brown faculty on campus today, and in order to remediate those disparities you have to be intentional”.

Mr Cohn said FIRE is generally neutral on that bill. He said it supports a section banning soliciting DEI statements in hiring.

“I think the state would be better off talking about, you know, how they should avoid compelling applicants or faculty who are up for promotion from being compelled to issue statements on any” political or ideological subject, he said.

“What you don’t want in your legislation is to fight political litmus tests by imposing your own, signaling…one and only one point of view,” he said.

This is an edited version of a story that originally appeared on Inside Higher Ed

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