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Future of university tenure in Texas likely will be decided in last-minute negotiations

The student union at the University of North Texas campus in Denton on May 8, 2020.
Ben Torres
The Texas Tribune
The student union at the University of North Texas campus in Denton on May 8, 2020.

The Texas Senate wants to ban tenure. The House gave initial approval Monday to a bill that would instead enshrine tenure policies in state law. After final passage, the two chambers have a week left to come to a compromise.

The fate of tenure for Texas public university professors is poised to be decided through last-minute negotiations after the House and Senate have each thrown their support behind dramatically different proposals.

The Senate, led by Lt. Gov. Dan Patrick, voted to eliminate tenure altogether, arguing it makes “woke” faculty feel protected to spew liberal ideology to students. But on Tuesday in a 83 to 61 vote, House gave final approval to an overhauled version of the bill that instead enshrines tenure policies in state law.

Rep. John Kuempel, R-Seguin, carried the legislation in the House and argued that his version of the legislation brings back tenure from the Senate chopping block by “providing our institutions of higher education a baseline, a framework of what we expect from those institutions and the faculty.” This will provide transparency and clear expectations, he said.

The bill now heads back to the Senate, where lawmakers can accept the changes to the bill or call for a conference committee where selected lawmakers from both chambers will have to negotiate a version they can agree on during closed-door meetings before sending the bill to Gov. Greg Abbott. The two chambers have until May 26 to come to an agreement.

Faculty and other opponents have criticized both versions of the bill, arguing that while the House option is better than the Senate proposal, it would still make it difficult to recruit and retain top faculty who help the state’s universities rise in prestige and national rankings.

“On the one hand, this Legislature is investing billions of dollars to make our public universities more competitive,” Rep. Victoria Neave Criado, D-Dallas, said on the House floor Monday before the House initially approved the bill. “But on the other hand, this Legislature is threatening the academic freedom of our schools of thought. Senate Bill 18 would have Texas be the only state in the nation to cut off this academic security and water down this vital recruitment tool.”

Faculty were particularly concerned about a portion of the House version that defined the “property interest” of tenure as one year’s salary.

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.

Faculty have said they’re worried that the bill’s definition of property interest would erode their due process protections by potentially making it easier to terminate them after paying them a year’s salary. On Monday, the House added in an amendment that expanded the definition of property interest to include a “faculty member’s continuing employment, including his or her regular annual salary and any privileges incident to his or her status as a tenured professor.”

Faculty said on social media that this change brings the language closer to the protections traditional tenure offers.

House Democrats had successfully delayed the debate on the bill Thursday, calling a point of order — a parliamentary procedure used to delay or kill legislation on a technicality — to argue that the analysis of the legislation was misleading. Democrats tried again to kill the legislation through a point of order on Monday, but were unsuccessful.

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 teach 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. 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 earlier this month 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.”

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 reasons listed as acceptable to terminate a professor in the House version 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.