North Dakota is about to consider a really bad faculty tenure law

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North Dakota lawmakers are about to consider a bill that could undermine the tenure of the faculty of two of its public higher education institutions.

HB 1446 would create a four-year pilot program for tenured faculty at Bismarck State College and Dickinson State University that would empower the presidents of those universities to review any tenured faculty member “at any time the president believes that a assessment in the institution is best interest.”

Under the bill, presidents could consider these “duties” that relate to the employment of defective tenured members and whether they:

  • “generate more income from tuition or grants than the combined total of the tenured faculty member’s salary, benefits, allowances, and other expenses plus all other costs of hiring the faculty member, including employment taxes.”
  • “comply with the policies, procedures, and guidelines of the institution, the president of the institution and other administrators, the state board of higher education, and the university system of North Dakota.”
  • “effectively teach and advise a number of students approximately equal to the average teaching and consulting load of the campus faculty.”
  • “participate in measurable and effective activities to 1. help recruit and retain students for the institution; 2. helping students achieve study success; 3. promote the interests of the institution, including through the provision of advice and shared governance to campus leaders, and exercise mature judgment to avoid inadvertent harm to the institution, particularly through the use of social media or Internet platforms of avoid third parties to campus staff or the institution.”
  • “other factors relevant to the faculty member’s employment and the interests of the institution and the institution’s students.”

Under the bill, if the “president determines that a tenured faculty member has failed to fulfill a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member unless the president specifically directs why it is in the interest of the institution to retain the faculty member despite the fact that the faculty member fails to fulfill the duties and responsibilities of the term of office.”

The president may enlist the assistance of another administrator to conduct the assessment “but may not delegate responsibility for the assessment to a faculty member who is not an administrator.”

Finally, such presidential ratings “are not subject to appeal or review by any faculty member or faculty committee.” And “No complaint, lawsuit or other allegation shall be allowed against any president or other administrator for actions taken under these provisions.”

If Bismarck State and Dickinson State faculties aren’t alarmed about this proposed legislation, they should be. And that includes any faculty member at any public college or university in North Dakota.

According to the bill’s author, House Majority Leader Mike Lefor, (R-Dickinson), his intent was to promote accountability and efficiency within the North Dakota University System. “What I call the Tenure with Responsibilities Act has 11 main points and if tenured professors are concerned about that, I would ask why,” Lefor said.

I was tenured at two universities for over 30 years, so I’ll answer his question.

  1. Institutions already mandate annual review of both non-tenured and tenured faculties, to ensure faculty evaluation and accountability are assessed through a thorough multi-tiered academic process. The suggestion that this bill introduces faculty accountability that was otherwise absent is not true.
  2. The universities also have written procedures and policies for granting or terminating tenure that are not too different from those used at similar institutions across the country. In fact, they don’t give the president the authority to treat tenured faculty as “at will” employees, which is what HB 1446 almost does.
  3. The idea that faculties could lose tenure because they cost more in compensation than they bring in tuition or grant income isn’t just quirky. It is also a way to threaten higher-paid, senior teachers who often teach more advanced courses, which in turn tend to have smaller enrollments. Or it can be used to target teachers in programs that have a small number of majors that a college may want to cut.
  4. Terminating tenured faculty for using “third-party social media or internet platforms to discredit campus staff or the institution” is a clear violation of free speech, so much so that even Lefor apparently acknowledges the issue. He is quoted in the Dickinson Press say he will remove that part of the bill. Why that hasn’t happened yet is unclear, as is the thinking behind its inclusion.
  5. Even more problematic is language that empowers presidents to consider “other factors relevant to the faculty member’s employment and the interests of the institution and the institution’s students.” What other factors? A professor’s salary? A professor’s reputation for being a harsh judge? The fact that a wealthy donor disapproves of a faculty member? A budget shortfall? A faculty member’s disagreement with a department chair or dean…or president?
  6. Presumably tenured teachers from the two universities have signed contracts outlining their rights and responsibilities. Does the bill’s author believe he can make those contractual property rights disappear because a university president displaces them in favor of “other factors relevant to the faculty member’s employment and the interests of the institution…?” The plaintiffs’ lawyers in North Dakota have to lick their chops.
  7. The bill gives a president the power to strip a faculty member of office without the input of anyone else on campus. I’m a former president and there were days when I fantasized that maybe I could fire a recalcitrant faculty member who was giving me a hard time. (What university president doesn’t have that?) Fortunately, none of the institutions I worked at would allow that; nor is it possible in most colleges and universities across the country.
  8. And what about a faculty member’s right to appeal or regret a dismissal by the president? They fall under this account. What about the right to take the dispute to court? Also abolished. due process? What fair process.

What is also alarming is that Steve Easton, the president of Dickinson State University, not only supports the bill, he apparently introduced an early draft of it and proposed that it be applied to all public universities in North Dakota.

“In general, I support the bill. I believe it is important to change a tenure from what it has sadly become in practice, a life tenure without excessive behavior, into a job that, like almost all other jobs, involves certain duties and responsibilities that can be enforced by supervisors,” said Easton, who is a lawyer. He added that he would like to see the provision referring to the use of third-party social media or internet platforms deleted because he believes that campus staff should be given fair criticism.

“If this bill passes, it will have no practical effect on the many tenured faculty members who are doing an amazing job of changing students’ lives through efficient and effective teaching. Those great faculty members, including many at Dickinson State, I believe have nothing to fear from this bill,” Easton said.

Here’s the problem with that logic. Current policies for granting, reviewing, and revoking tenure at most colleges and universities involve a deliberative process in which faculty, administrators, and sometimes outside reviewers play an important role in determining final outcomes. There are checks and balances in those assessments and they take into account multiple aspects of faculty performance. Many institutions have carefully established procedures for conducting post-office assessments of teachers whose performance has declined.

The policy also includes provisions for the firing of teachers when extraordinary financial hardship threatens the institution’s viability, a condition known as “financial necessity.”

For the most part, these policies have served educators, institutions, students, and society well. Is there room for tenure changes? Can the tenure of the faculty be reformed? Naturally. I myself have advocated for some changes.

But a well-thought-out rental policy should never allow one person to make the decision based on vague factors that are not even subject to minimal appeals and due process rights. They should not threaten academic freedom and faculty contracts in the way this bill would enshrine. They must not provide a way to circumvent the typical requirements for declaring financial distress. And they must not give presidents the unilateral ability to expel whistleblowers and others they consider troublemakers.

HB 1446 could do all four. Therefore it should not become law.

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