If West Virginia University gets its way, faculty there will soon lose tenure’s core procedural protections against inappropriate dismissal. They’ll also face new restrictions on their ability to speak on matters of public concern. FIRE sent a letter to WVU last week flagging this serious threat to academic freedom, and calling on the university to reject the proposal.
In October, WVU released a draft of its faculty evaluation guidelines that, if approved, would make it much easier to fire tenured faculty. The changes would let WVU automatically recommend tenured faculty for termination if after two unsatisfactory annual performance reviews assessing the professors teaching, research, and service. In contrast, WVU’s current policy for terminating a tenured professor requires a formal hearing, at which the university must present evidence establishing just cause for dismissal. Dismissing tenured professors only in cases of serious misconduct, often with a full and fair faculty committee hearing, is a standard tenure protection widely practiced by universities nationwide.
In addition to the new termination process, the proposed guidelines also incorporate WVU’s Employee Code of Conduct into the faculty evaluation process, meaning that faculty will be assessed — and now potentially subject to termination — on the basis of whether they interact “in a positive, respectful and appropriate manner” and show respect for “decisions that have been made in the best interest of the University.” But faculty fulfill a very different role than other administrative staff; treating them like any other staff member violates the very purpose of tenure: to shield faculty from institutional repercussions for their research or expressed views.
As the American Association of University Professors explains, using a post-tenure review process like WVU’s to terminate faculty creates “a climate that discourages controversy or risk-taking, induces self-censorship, and in general interferes with the conditions that make innovative teaching and scholarship possible.”
Tenure protects academic freedom by imposing demanding procedures and high standards for dismissal. By loosening the standards and weakening the procedural safeguards of tenure, WVU’s proposed policy “creates [the] conditions in which a host of plausible grounds for dismissal may cloak a violation of academic freedom,” according to the AAUP. “Innovative research may be dismissed as unproven, demanding teaching as discouraging, and independence of mind as lack of collegiality.” In other words, if WVU or a department leader wants to oust a controversial faculty member, all they have to do is subjectively deem their performance “unsatisfactory.”
These risks are magnified by WVU’s deliberate incorporation of amorphous and subjective “collegiality” standards into the evaluation process. Policies that explicitly allow for faculty to be evaluated based on their “respect” for “decisions made in the best interest of the University” or whether their interactions with others are “positive, respectful and appropriate” are especially likely to stifle nonconformist or disagreeable speech. Such evaluation criteria can also be weaponized to shut down contrary viewpoints.
WVU’s proposed rule is remarkably similar to the conflict-of-interest rule recently used by the University of Florida.
The proposed changes come in the wake of WVU’s September similarly-controversial proposal for a revised conflict-of-interest rule requiring faculty members to obtain pre-approval for outside consulting arrangements in which they will be taking a position adverse to either WVU or the state of West Virginia in a formal legal proceeding. This rule would hand WVU the power to decide whether a faculty member may testify as an expert witness or represent a party opposing WVU or the state in court.
This rule impermissibly discriminates against professors’ speech based on viewpoint by imposing special rules on faculty who wish to participate in certain formal court proceedings. And the lack of narrow, objective, and definite standards to guide the approval process also renders the pre-approval requirement an unconstitutional prior restraint on speech.
WVU’s proposed rule is remarkably similar to the conflict-of-interest rule recently used by the University of Florida to bar six professors from participating as expert witnesses in legal proceedings considered adverse to the state. After widespread criticism, UF belatedly approved the professors’ requests to testify as expert witnesses and amended its conflict-of-interest rule to provide a “strong presumption” for allowing faculty participation.
Promises not to abuse an unconstitutional policy doesn't change the fact that — on its face — it subjects speech the government doesn't like to special rules.
Despite these last-minute attempts to paper over the obvious First Amendment issues of its ill-conceived rule, a federal district court preliminarily enjoined UF from using the policy, deeming it an unconstitutional prior restraint. The court likened UF’s bid to silence its own professors’ critical speech to “the demise of academic freedom” seen at the University of Hong Kong, where administrators fearful of the Chinese government muzzle professors and students alike.
WVU now looks to be headed down the same fraught path. In response to public comment on the testimony rule, WVU amended it, clarifying that it may not be used to prohibit faculty consulting arrangements based on the viewpoint or position advocated. However, as the UF example demonstrates, promises not to abuse an unconstitutional policy doesn't change the fact that — on its face — it subjects speech the government doesn't like to special rules. The policy's existence violates the First Amendment.
Beyond the legalities, this policy harms society’s vital interest in the effective truth-seeking function of both universities and the courts. WVU’s attempt to upend tenure protections for faculty does this too. If approved, these rules will erode academic freedom and undermine the truth-seeking function at the core of the university’s mission. FIRE calls on WVU to reject these proposals and preserve the campus climate of free inquiry and risk-taking that “make[s] innovative teaching and scholarship possible.”
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).
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