North Dakota Is About To Consider A Really Bad Faculty Tenure Bill

North Dakota legislators are about to consider a bill that could gut faculty tenure at two of its public higher education institutions.

HB 1446 would create a four-year pilot program for tenured faculty at Bismark State College and Dickinson State University that would give the presidents of those universities the authority to review any tenured faculty member “at any time the president deems a review is in the institution’s best interest.”

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

• “generate more tuition or grant revenue than the combined total of the salary, fringe benefits, compensation, and other expenses of the tenured faculty member plus all other costs of employing the faculty member, including employment taxes.”
• “comply with the policies, procedures, and directives of the institution, the institution’s president and other administrators, the state board of higher education, and the North Dakota university system.”
• “effectively teach and advise a number of students approximately equal to the average campus faculty teaching and advising load.”
• “engage in measurable and effective activities to 1. help recruit and retain students for the institution; 2. help students achieve academic success; 3. further the best interests of the institution including providing advice and shared governance to campus leaders, and exercising mature judgment to avoid inadvertently harming the institution, especially in avoiding the use of social media or third-party internet platforms to disparage campus personnel or the institution.”
• “other factors relevant to the faculty member’s employment and the interests of the institution and the institution’s students.”

According to the bill, if the “president determines a tenured faculty member has failed to comply with a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member, unless the president specifically articulates why it is in the interest of the institution to continue to employ the faculty member despite the faculty member’s failure to comply with the duties and responsibilities of tenure.”

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

Finally, such presidential reviews are “not appealable or reviewable by a faculty member or faculty committee.” And “No complaint, lawsuit, or other allegation is allowed against a president or other administrator for actions taken pursuant to these provisions.”

If faculty at Bismarck State and Dickinson State are not alarmed about this proposed legislation, they should be. And so should every 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’m naming as the Tenure with Responsibilities Act has 11 main points and if there are tenured professors who are concerned about it, I would ask why,” said Lefor.

I was a tenured professor at two universities for more than 30 years, so I’ll answer his question.

1. The institutions already mandate an annual review of both nontenured and tenured faculty, assuring that the evaluation and accountability of faculty are judged through a thorough academic process involving multiple layers of oversight. The implication that this bill introduces faculty accountability that was otherwise absent is not true.
2. The universities also have written procedures and policies governing the granting or terminating of tenure that are not too different from those used at similar institutions across the nation. In effect, they do not give the president the authority to treat tenured faculty as “at will” employees, which HB 1446 come close to doing.
3. The notion that faculty could lose tenure because they cost more in compensation than they generate in tuition or grant revenue is not merely peculiar. It’s also a way to threaten more highly paid, senior faculty who often teach more advanced courses, which in turn typically have smaller enrollments. Or it could be used to target faculty in programs that have a small number of majors and that a college might want to eliminate.
4. Terminating tenured faculty for using “social media or third-party internet platforms to disparage campus personnel or the institution” is an obvious free speech violation, so much so that even Lefor apparently recognizes the problem. He’s quoted in the Dickinson Press as saying that he will remove that portion of the bill. Why that has not yet happened is unclear, as is the thinking that led to its inclusion in the first place.
5. Even more problematic is the language that gives presidents the power 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 tough grader? 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 faculty at the two universities have signed contracts that enumerate their rights and responsibilities. Does the author of the bill 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…?” Plaintiffs’ lawyers in North Dakota must be licking their chops.
7. The bill gives a president the authority to strip tenure from a faculty member without involving the input of anyone else on campus. I am a former president, and there were days when I fantasized I might be able to fire a recalcitrant faculty member who gave me a hard time. (What college president hasn’t?) Luckily, that would have not been permitted at any institution where I worked; nor is it possible at most colleges and universities across the nation.
8. And what about a faculty member’s rights to appeal or grieve dismissal by the president? They’re gone under this bill. How about the right to take the dispute to court? Abolished as well. Due process? What due process.

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

“Overall, I am supportive of the bill. I believe that it is important to turn tenure from what it has unfortunately become as a practical matter, a lifetime appointment absent outrageous behavior, to a job that, like almost all other jobs, carries with it certain duties and responsibilities that are enforceable by supervisors,” said Easton, who is an attorney. He added that he would like to see the provision referring to the use of social media or third-party internet platforms removed because he believes campus personnel should be subject to legitimate criticism.

“If this bill passes, it will have no practical effect on the many tenured faculty members who do a great job of changing students’ lives through efficient, effective teaching. Those wonderful faculty members, including many at Dickinson State, have nothing to fear from this bill, in my opinion,” Easton said.

Here’s the problem with that logic. The current policies for granting, reviewing and revoking tenure at most colleges and universities involve a deliberative process in which faculty, administrators and sometime outside reviewers play important roles in determining the final outcomes. There are checks and balances in those reviews, and they consider multiple aspects of faculty performance.

The policies also include provisions for laying off faculty when extraordinary financial problems threaten the viability of the institution, a condition known as “financial exigency.”

For the most part, these policies have served faculty, institutions, students and society well. Is there room for tenure modifications? Could faculty tenure be reformed? Of course. I’ve advocated for some changes myself.

But thoughtful tenure policies should never allow one individual to make the decision based on vague factors that are not subject to even minimal appeals and due process rights. They should not threaten academic freedom and faculty contracts in the ways that this bill would enshrine. They should not provide a way to circumvent the typical requirements for declaring financial exigency. And they should not give presidents the unilateral ability to oust whistleblowers and others they might view as troublemakers.

HB 1446 could do all four. That’s why it should not become law.