Faculty are alarmed in Kansas as the state legislature considers stripping faculty members at the state’s two-year community colleges and technical schools of their due process rights. The bill, HB 2531, which is intended to make it easier to dismiss ineffective professors, would effectively end tenure. Professors opposed to the bill believe it will infringe upon faculty members’ free speech rights and undermine academic freedom.
Under current law, professors working at the state’s community colleges and technical schools earn tenure after three years. In its simplest terms, tenure means these professors may be dismissed only with adequate cause and only with due process, which includes the ability to appeal their termination. Tenure does not mean a faculty member can’t be fired, but that there must be a good reason and a process for termination. Without tenure, college administrators may dismiss faculty members without a hearing, appeals process, and other due process protections so long as they abide by existing employment law.
Although tenure is standard practice across the country, the pending legislation comes on the heels of a decision by the Kansas legislature two years ago to eliminate tenure in the K–12 school system. HB 2531 would likewise repeal a four-decades-old state law that requires due process, including the right to have an independent hearing, for tenured teachers. The bill would, however, leave open the possibility for schools to negotiate individual due process protections in their contracts with teachers.
According to the Kansas City Star, Herbert Swender, president of Garden City Community College, justified the bill by arguing that the current system does not incentivize teachers to excel after their third year. As a result, the real issue, he believes, is whether teachers deserve special job protections that other employees do not currently have. He added, “Today’s bill is not about free speech in the classroom. It’s not about academic freedom.”
Although FIRE does not take a position on tenure policy or whether it should be codified into state law, tenure has historically served as an important safeguard for faculty members’ free speech rights and academic freedom. In higher education, tenure—and the procedural protections it usually provides—can be effective in protecting a faculty member from termination when his or her speech has upset university officials or caused a public outcry.
To be clear, tenure alone does not guarantee either free speech or academic freedom, but it frequently aids both, as Kansas’ community college professors have been arguing. Melanie Harvey, a member of the faculty at Johnson County Community College, told the Kansas City Star, “Due process gives us the freedom to speak up with a dissenting voice, without fear of retaliation.”
Most jobs, of course, do not require and do not have a tenure-like system. The concern, however, is that in the context of higher education, where professors are expected to share in governance and serve as public intellectuals who speak out on sometimes controversial topics, professors will self-censor if they do not have tenure. That is, faculty members may avoid opposing the administration, refrain from speaking out on issues affecting their college, community, or nation, or even avoid teaching in innovative ways simply to prevent the possibility of retaliation. When this occurs, both students and society lose out, rather than just an employer.
Kansas is not alone in trying to eliminate tenure. Last year, the Wisconsin state legislature passed a budget that weakened tenure for faculty members at public universities. At that time, University of Wisconsin–Madison professors Donald Downs and John Sharpless wrote:
[T]he right at stake is academic freedom, which requires the honest and fearless pursuit of truth that lies at the heart of universities’ moral character. Outnumbered and often targeted for our beliefs by members of the campus left, constitutional conservatives like us—who take individual liberty, freedom of speech and academic freedom very seriously—have long relied on tenure to protect our right to dissent and to preserve the free exchange of ideas in academia.
Today—perhaps more than ever—truly free speech on college campuses is under threat nationwide[.] Think of the “speech codes” limiting what students and professors can say; the silencing of those who deviate from campus orthodoxies; and the “dis-invitation” of unwelcome graduation speakers deemed insufficiently progressive, such as Ayaan Hirsi Ali at Brandeis University, George Will at Scripps College and even former University of California, Berkeley, Chancellor Robert J. Birgeneau at Haverford College.
Kansas legislators would be wise to consider these points.