Tag: Tenure

Top lawyer targets tenure after being sued for ignoring it

Kansas lawmakers are considering a bill that would sap tenure of its meaning for faculty at the state’s public colleges and universities.

House Bill 2348, introduced this month in the Kansas Legislature, doesn’t specifically say it would ban tenure. But according to the proposed law, “any special benefits, processes or preferences conferred on a faculty member” by tenure “can be at any time revoked” by a higher education institution or the Kansas Board of Regents, which governs the state’s public universities. It also says tenure wouldn’t “create any entitlement, right or property interest in a faculty member’s current, ongoing or future employment.”

The bill would end such rights not just for future “tenure” earners but for already tenured professors, too. Mallory Bishop, a nontenured instructor at Emporia State University who serves as faculty president, said HB 2348 would “remove the core premise of tenure,” which is “you cannot be fired without cause.”

“The bill itself seems to remove everything except the name of tenure,” Bishop said.

It’s part of a growing trend among Republican lawmakers in multiple states seeking to weaken or eliminate tenure in public institutions. Ohio’s Senate passed a bill this year that would weaken tenure, though the House hasn’t yet followed suit. So far, no state has fully banned tenure at public institutions.

But the Kansas bill is noteworthy for its origins. The Board of Regents and the state’s two top research universities publicly oppose it. So where did it come from?

Steven Lovett, general counsel for Emporia State University, says he wrote it. And the top of the bill includes one sentence saying a lawmaker requested it on Lovett’s behalf.

The bill materialized after Emporia State suffered a setback in its continued defense against a federal lawsuit filed by 11 tenured professors whom the university decided to lay off in 2022. A judge—rebuffing the university defendants’ request to toss out the suit—allowed the faculty to move forward with their allegations that they weren’t provided sufficient due process. Emporia State officials, including Lovett himself, are among the defendants in the continuing suit.

Those faculty were among 23 tenured professors whom Emporia State laid off, citing financial pressures and other possible reasons. The university’s handling of the situation led the American Association of University Professors to censure the institution. The controversy presaged layoffs over the past two years by other U.S. universities, which also cited financial concerns and didn’t spare tenured faculty. West Virginia University made headlines in 2023 for axing a swath of tenured faculty, followed by the University of Wisconsin at Milwaukee and Western Illinois University.

A university spokesperson wrote in a statement to Inside Higher Ed that Emporia State supports tenure and that Lovett’s “submission of this bill comes as a surprise to the university.” But the statement also defended Lovett’s “constitutional right” as “a private citizen” to submit the legislation.

The statement doesn’t say whether the university supports or opposes the bill. Emporia State didn’t provide an interview or respond to written questions about its position on the legislation.

Bishop said she’s asked top university officials for their stance but hasn’t received an answer; she said university president Ken Hush told her in a private conversation that even if the bill were to pass, “tenure still exists.” Lovett—saying he was commenting as a private citizen—has told lawmakers that universities that speak out against the bill are violating state law.

And while the university says it was surprised by Lovett’s submission of the bill, an online video of an earlier legislative hearing shows Hush appearing to urge lawmakers to support similar legislation not long before his top lawyer introduced it.

Reversing a Court Loss?

The university attempted to dismiss the laid-off professors’ lawsuit by arguing that tenure didn’t give them a “property right” to continued employment. “Property right,” or “property interest,” is a legal term, and if tenured professors possess this right, it could mean they should have received due process before being ousted, in accordance with the 14th Amendment.

In December, a U.S. district court judge in Kansas allowed the case to progress, ruling that the professors’ legal complaint sufficiently alleged that the faculty did have so-called property rights to keep their jobs. The case continues.

As the Kansas Reflector previously reported, a Kansas House Higher Education Budget Committee member asked Hush about the suit during a Jan. 31 hearing. According to a video of the proceedings, Hush said the property right ruling “means an entitlement and job forever, until this is settled in some form. Obviously, as a state agency, we’re working with the attorney general on this. And the other option to correct that is via legislation.”

About a week later, House Bill 2348 appeared at the request of Representative Steven K. Howe—who chairs the committee Hush spoke to—on behalf of Lovett. Howe declined to comment for this article.

The bill, however, is currently before the House Judiciary Committee—not Howe’s committee. Lovett advocated for the legislation during a Feb. 11 Judiciary hearing, in which he was introduced as “Mr. Steven Lovett, private citizen.” Lovett told the lawmakers the university didn’t encourage him to write the bill “and had no knowledge of it before I submitted it.”

He said the bill “eliminates the property right of tenure but not tenure itself.” The idea that tenure is a property right “obligates Kansans to a long-term, unfunded fiscal liability,” he said, adding that the due process required to oust tenured faculty “costs even more.” He argued the First Amendment makes tenure and due process unnecessary to protect academic freedom.

“A nontenured faculty member enjoys as much legal protection to pursue academic freedom as a tenured faculty member,” he said. Tenure “primarily results in nothing more than personal gain.”

Lovett said Board of Regents members echoed part of his arguments amid the lawsuit filed by the laid-off professors, arguing that any universities that opposed the bill would be violating state law that says the board manages public universities. As of now, though, a judge has dismissed all board members as defendants, leaving only Lovett, Hush and one retired Emporia State official facing the lawsuit.

At the end of his speech, Lovett, who’s also an associate professor of business law and ethics at Emporia State, publicly renounced the tenure the university gave him.

Doug Girod, chancellor of the University of Kansas, followed Lovett at the lectern.

“I don’t believe I’m breaking the law, because I am here with the full knowledge of my board,” Girod said. Eradicating “meaningful tenure” would mean losing “our best faculty, and we will not be able to replace them,” he said.

After Kansas State University’s president spoke against the bill, Blake Flanders, the top administrator at the Board of Regents, told lawmakers the board is also against it, citing similar recruitment and retention concerns. Further, his written testimony suggested he doesn’t buy Lovett’s argument that he’s acting as a private citizen.

He pointed out that Board of Regents policy requires legislative proposals from institutions it governs first be presented to the board for approval “before being submitted to the Legislature.” He wrote, “That policy was not adhered to in the case of this bill.” A board spokesperson didn’t provide Inside Higher Ed an interview or answer written questions about whether the board is pushing for Lovett to be disciplined.

Even if the bill passes, it’s unclear whether it would actually help Emporia State in its current suit or erase the meaning of tenure for other Kansas faculty who have already earned it. J. Phillip Gragson, attorney for the laid-off professors, said in an email that that would be unconstitutional.

“While the state can certainly commit higher education academic and economic suicide by passing a bill that eliminates tenure prospectively only if it wants, the state cannot take away tenure rights from those professors who have already obtained tenure without due process,” he wrote.

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February 25, 2025
CLASS BIAS AND RANDOM THINGS LAW REVIEW: DRAFT Excerpt from “In the Company of Thieves”: The Tenure Process

Law professors are evaluated to determine if they should be tenured. Supposedly you must excel in scholarship, teaching, and service. You would think that if someone actually excelled at all three, he or she would be hired away by better law schools. Very few are. Why? Because in actuality there are three requirements:

1.
write something – anything would do,

2.
be politically correct, (or very quiet),

3,
be acceptable socially.

(4.
I have also heard isolated inane standards like “she is a good mother.” but these usually do not count.)

As noted, decent teaching is supposed to count but I have seen many instances in which awful
teaching was explained away as actually an indication of good teaching. To
determine a candidate’s teaching there
are class visitations by 2 or 3 professors and the students fill out anonymous
evaluation forms at the end of the semester. Not wanting to offend someone who
may get life time employment if they meet the above “standards” the visitors
uniformly say the teacher was brilliant, engaging, showed respect for the
students and so on. One has to keep in mind that the professor knows in advance
who is coming and when. Not to be well prepared and energetic those days would
mean you are an idiot. Still, there are some who go one step beyond. For
example, at one point several students asked me why their professor gave the
same lecture day after day. As it turns out these were the days when there were class visitation, and I suppose he had the one lecture down perfectly.

The
students fill out evaluations at the end of each semester. These are pretty
much ignored whether high or low if one passes the three part test above. On
the other hand, if they are low to average, they become the hammer to justify
getting rid of the candidate who fails the three part test. But even here, many
professors do not want to leave student evaluations to chance. I have seen
professors going into classes with the forms the students must fill out in one
hand and platters of cookies or boxes of pizza in the other. Sometimes the
bribes are so shameful that even the students know what is up but this does not
discourage them accepting the bribe. One professor would sponsor a softball
game in the afternoon for his class followed by cocktails at a local pub. The
tab could run in excess of $1000 dollars. There are far more subtle bribes like
not calling on students and appearing to be deeply concerned about their
welfare when you could not care less. One very subtle effort involves handing out your own evaluations a day
or two before the official ones. A colleague who does this says it takes the
sting out of what the students may say on the official evaluations and illustrates how seriously he or she takes teaching.

Faculty
who are able to turn evaluations into popularity polls take high evaluations to
mean they are good teachers. Yet, the vast majority of studies find that there
is no correlation between student evaluations and student learning. In fact, some
find students of the highly rated professors actually learn less than those who
have professors rated lower. Actually no one knows what student evaluations
indicate. One interesting study showed students very short silent movies of
teacher and asked them to evaluate them. After the course, they also filled
out evaluations and they were about the same as the first set. One
interpretation was that the students were responding to body language and
facial expressions as much as anything else.

If
the whole evaluation of teaching process is a joke it stands right beside the
evaluation of scholarship. I am pretty sure if someone wrote nothing, not even
doodles in napkins at Starbucks he or she would not get tenure. I am just as
sure that a person who writes next to nothing but satisfies the three part test
described above will be tenured. There are two things at work here. Letters are
sent out to experts in the field. It’s a small honor or form of recognition to
be asked to review someone’s scholarship. Like many things in the law professor
world, it is something people want to be asked to do but pretend that it is
burdensome. And, it is actually burdensome to those who are popular reviewers.
Who are the popular reviewers? Typically, they are people who write positive
reviews. Who are the unpopular reviewers? Reviewers who are honest. The popular
ones use terms like “rising star,” “insightful,” “major contribution,” etc. The
unpopular ones are not afraid to say unoriginal, not carefully researched, a
repetition of his or her earlier work.

It
is not a stretch to say there is something of a market for letters. Tenure and
promotion committees want positive reviews for those passing the three part test.
If someone fails the three part test they would prefer negative reviews. But
negative reviews are hard to come by. Why? Because if you write negative reviews you may not be asked again
and, remember, being asked is a feather in your cap.

There
s a second factor in this letter solicitation process. What happens if someone
passes the three part test and a negative letter slips through. The negative
letter is either ignored or is subject to scrutiny with the result being that is is rejected. Let’s take the case of a professor who I believe had the most expensive
education available in American – Exeter, Princeton, Harvard — a nice
enough guy who fits in the category discussed later of law professors who
really do not want to be law professors so they change the job. He passed the
three part test. In fact, one colleague noted how upsetting it would be
socially if he were denied tenured. His specialty was writing about meditation. A negative letter came in observing that one of his articles was in large part the same as an earlier
article the reviewer had been asked to review for promotion. In this case, the faculty ignored
the letter. The recycling of an idea was not addressed. In some cases, the
treachery is especially extreme. We call the collection of review letters a “packet.”
I have seen packets that included quite negative reviews and the committee
making a recommendation to the faculty has said “all the letters were positive”
and no one uttered a word because the three part test was passed with flying
colors.

Remember,
these are law professors so they will often game the system. They may tell the
committee doing the evaluations who not to ask for a letter and who to ask for
a letter. It can get pretty extreme. One well know professor/politician was
said to have mailed drafts of an article to possible reviewers before hand to make
sure when the reviewer received the manuscript to review they would, in effect,
be reviewing themselves.

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April 4, 2021
Academic Freedom, Tenure & the U.S. Higher Education System – GlobalHigherEd

This entry is available via Inside Higher Ed as well.

~~~~~~~~~

2015 is surely one of the most momentous years in a long time regarding debates about tenure, academic freedom, the Wisconsin Idea, budget cuts, etc. Yesterday’s balanced article (‘Tenure or Bust‘) by Colleen Flaherty, in Inside Higher Ed, is but the latest of a series of nuanced pieces Ms. Flaherty has produced this year about the unfolding of higher education debates in this Midwest U.S. state of 5.75 million people.

While I’m immersed in the tumult as a faculty member at the University of Wisconsin-Madison, I can’t help standing back and trying to look at the big picture. Studying, living, working, and visiting a range of other countries, including universities in Canada, England, China, Hong Kong, Singapore and France, as well as being based in the U.S. since 2001, often engenders a drive to compare. And when comparing and reflecting upon what this wonderful university and the state/national higher education system (systems, in reality) has to offer, I increasingly think too much is taken for granted, or assumed. This is a relatively risk-oriented society, and I’m struck by how many people (including many of of the people leaving comments below ‘Tenure or Bust‘) assume the system is ‘broken,’ resiliency can be counted upon, and mechanisms to turn the system on a dime exist, if searched for long enough. They also ignore path dependency, and prior developmental trajectories and agendas, the ones that have led us to where we are now, a nation that has some of the strongest and most dynamic universities in the world. Problems and weaknesses exist, of course, but people in Wisconsin and the U.S. more broadly don’t seem to know just how many other countries are desperate to create just the types of universities that exist here.

And what are some of the deep (core) principles and conditions that have led to the creation of so many world-class universities and higher education systems (at the state-scale) in Wisconsin and the U.S. more broadly? This question brings me to the words of Hanna Holborn Gray, the esteemed president of the University of Chicago from 1978 to 1993. In conference panel comments reprinted in the Summer 2009 issue of Social Research, Hanna Holborn Gray deemed universities to be a very important and special institution:

…the only institution in our world, that is, as it were, commissioned to always take a longer-term look. The only institution in our world that is commissioned, so to speak, to concentrate on the mission of discovery and learning, and the transmission of learning, on the elaboration and interpretation and debate over important ideas, over what is most important in the cultural world.

Emeritus President Holborn Gray then begged the question: “What is it that makes that profession or vocation possible? And what is it that makes the institution in which it is carried on a genuine institution?”

Her question was actually answered 115 years earlier to this day (18 December 1900), by the founding president of the University of Chicago, William Rainey Harper, in his ‘36th Quarterly Statement of the President of the University’:

When for any reason, in a university on private foundation or in a university supported by public money, the administration of the institution or the instruction in any one of its departments is changed from an influence from without; when an effort is made to dislodge an officer or a professor because the political sentiment or the religious sentiment of the majority has undergone a change, at that moment the institution has ceased to be a university, and it cannot again take its place in the rank of universities so long as their continues to exist any appreciable extent of coercion. Neither an individual, nor the state, nor the church has the right to interfere with the search for truth, or with its promulgation when found. Individuals, or the state, or the church may found schools for propagating certain kinds of special instruction, but such schools are not universities, and may not be so denominated.

Genuine ‘universities’ like the University of Chicago and those that make up the University of Wisconsin System are associated with conditions of autonomy, and are spaces that respect and uphold academic freedom. And from the faculty perspective, academic freedom is significantly realized via the mechanism of tenure, which enables faculty to focus upon things like “establishing revolutionary theories about economics” (one of Milton Friedman’s many contributions in Chicago), the sustained basic research that underlies the creation of the iPhone (that the University of Wisconsin-Madison contributed to), challenging research questions related to democratization, authoritarianism, sexuality or violence, complex global challenges such as climate change, and so on. And in so doing, these faculty members (in association with staff & students) play a major role in creating the conditions that have helped us facilitate the formation of one of the world’s first university-linked technology transfer units (WARF) in 1925, through to generating research activity and spin-off firms that has made the Madison city-region one of the US’s most advanced industrial bases (according to the Brookings Institution in 2015) — a now common process of geographical concentration that the World Bank and others (e.g., David Warsh) note is inevitable, but defacto functions as ‘engines’ for regional and national economies.

I have no doubt the vast majority of the University of Chicago’s current faculty would make the same argument I am above: after all, that great university’s leadership has been doing so since it was founded 125 years ago in 1890. Visionary leaders like William Rainey Harper and Hanna Holborn Gray were aware that the long and challenging road to build one of the most dynamic and powerful higher education systems in the world depended upon more than platitudes about ‘academic freedom’ – academic freedom actually had (and has) to be realized each and every day.

Kris Olds

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December 18, 2015
Reflections on Tenure in Canada vs Wisconsin – GlobalHigherEd

This entry is available at Inside Higher Ed as well.

~~~~~~

In the context of some intense debates about tenure in the University of Wisconsin System, and at UW-Madison, I’ve been acquiring some interesting information and views about tenure and related governance matters in Canada vs Wisconsin. Reflections and data have been kindly provided by Canadian leaders representing faculty and university administrative bodies, both nationally and in select universities.

Why focus on this issue in comparative perspective? First, leading Canadian universities (UBC, Toronto, Waterloo, McGill) have been poaching faculty from UW and could increasingly do so if proposed changes to tenure do not match existing standards/AAUP guidelines. Second, looking at different systems in a comparative way helps you realize what is working well here in WI, but also what might need to be changed, especially if higher education governance becomes more politicized in Wisconsin (as it has been in states like North Carolina).

In the end, it is similar and different in Canadian peer universities vs what we experience in WI. I think the biggest difference is it is more unionized in Canada (for ~80% of the faculty base) and the details re. tenure and layoffs are embedded in collective agreements. This said, some faculty associations at peers – the University of Toronto, University of Waterloo, McMaster University, and McGill University – though not officially certified as labour unions, nevertheless have negotiated collective agreements with standard grievance and arbitration procedures. Also, in Canada, the majority of part-time faculty are unionized and staff are unionized. It just goes to show you don’t necessarily need regulations re. tenure embedded in the state statutes (or equivalent) to guarantee strong tenure and shared governance, but, this said, there are other key differences (see below) so how it is all configured matters, a lot…

In the end, no tenured faculty in Canadian universities (including 100% of our peers, the ones poaching our faculty) lose tenure except for engaging in serious forms of unethical behavior (i.e. ‘due cause’). Exigency-related rules do apply but it has not happened, to date, for all sorts of reasons. And if exigency-related layoffs of tenured faculty were to be proposed, it happens at a broader university-scale and the guidelines typically state that a task-force is to be appointed with diverse membership and/or it can only happen in specified ways.

The other big (and important) difference is program-related changes are run through Canadian university senates and the senate is typically made up of senior administrators and elected faculty (the majority), staff, students, etc. See these senate membership lineups, for example:

The UW Board of Regents equivalent in Canadian universities does not need to sign off on program-related changes like the Board of Regents does here. So decisions on closure or redundancy are senate decisions (i.e. the locus of engagement and control is intra-institutional in nature). And in unionized environments, redundancy procedure, after senate has declared program closure, etc., are governed by collective agreement processes. In general the UW Board of Regents here in WI has not been too involved in the fine-grained details of program-related decisions or the funding of centers – they approve what has come up via shared governance pathways. But they could, in the future, become far more active and micro-management in orientation.

On a related note, boards of trustees or equivalent in Canada are university-specific and are more diverse and relatively autonomous from government involvement. You basically have government funded but privately (not-for-profit) autonomous universities. This keeps things less capital P political. The proposed New Badger Partnership (2011) Board of Trustees:

UW-Madison governed by 21-member Board of Trustees, including 11 members appointed by the Governor, with no Senate confirmation. Remaining 10 members represent UW-Madison constituencies (faculty, staff, classified staff, alumni, WARF). All remaining UW campuses governed by the current Board of Regents.

would have brought us half way to to this level of board autonomy vs the current system, though this proposed approach to governance should have also been applied to the UW System more generally and not just UW-Madison.

Thus, what you see is a relatively more autonomous/less politicized university and higher ed governance system in Canada; one where the norms of tenure and academic freedom are sometimes constructed via agreements but often are just part of institutional-organizational culture. The faculty trust the system more, I would say, than they do here now in what could become, if we don’t watch out, a hyper-politicized context. And they do so partly because of the unionized context, the codified agreements, and the fact the premier (governor equivalent) and the ruling party (or parties) tend to be much more hands-off. Increasingly, in Canada, governments through sector-wide bargaining or recalibrating funding formula, or setting tuition fee parameters, are exercising more hands on approaches. Budgets are, of course, political, but they’re just budgets for the most part and they don’t embed policy matters re tenure into budgetary processes in Canada like it has been happening here. It’s a more deliberative context: not perfect, this said, just more deliberative in structure.

The short-term take-away: don’t have unclear terms and procedures in a context where the potential exists for an increasingly more politicized and micro-management-oriented Board of Regents. Maintain tenure standards at UW-Madison and other universities in the UW System that match, in spirit and meaning, what they were before policy changes were injected into the Spring 2015 Wisconsin state budget. Faculty should not lose tenure except for ‘due cause’, as per AAUP guidelines. If program closure occurs after careful consideration by university-specific governance bodies, tenured faculty should have the right to shift to the unit of their choice, or become a professor of the school or college they are affiliated with. It is a clear and straightforward definition of tenure, and academic freedom, that helped make the US university system so well known, globally, for the production of innovative forms of knowledge. Unclear terms and procedures re. tenure has serious potential to destabilize the foundation of the entire system. And Canadian universities, not to mention hundreds of other US universities, will be salivating if this occurs.

The medium-term take-away: think about the potential role of faculty senates in future debates/steps. And think about tenure and shared governance in the context of the overall governance of the UW System (incl. what has been happening, and what should be happening). In my mind we have a legacy-based governance system that does not reflect the new realities of fiscal (tuition as a majority funding stream), economic (a globalizing knowledge economy), academic, and societal contexts. An unraveling of tenure in the next year will be a proxy indicator the entire UW System governance structure needs to be rethought.

We are, arguably, at risk of seeing the convergence of a legacy-based governance system with a more forceful and explicit political agenda – and this is not beneficial for a world-class university, and a world-class multi-campus state university system, in the 21st century. Anchor tenure, tightly.

Kris Olds

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October 22, 2015