Tenure is under attack in the US and your country is next

On 23 May, in the waning days of this academic year, the Louisiana House of Representatives passed a resolution which established the Task Force on Tenure in Postsecondary Education, making Louisiana the fourth US state in the past five years that has either abolished tenure or plans to do so.

These attacks on the more than century-old contractual status of professors are linked to these same states’ expansion of restrictions on the teaching of critical race theory (CRT) in primary and secondary school to their publicly funded colleges and universities.

A bill, passed by the Florida Senate (SB 7044) that was sponsored in the state’s House of Representatives by Speaker Chris Sprowls and then became law, bans the teaching of CRT in universities and by restructuring tenure, critics say, undermines academic freedom.

Among its provisions, professors are required to post their syllabi online to ensure transparency and to prevent professors from smuggling “ideology and politics” into their classrooms.

At the signing ceremony on 19 April 2020, Sprowls publicly worried about students who enrol in courses in Western democracy or in which they expected to learn “what it means to be an actual American” being instead indoctrinated into “socialism and communism”. In addition to their traditional negative meanings in the American political lexicon, these words are often stand-ins for CRT among right-wing “culture warriors”.

“That’s what this bill’s about. Are [students] going to walk into a university system that is more about indoctrination than it is about getting jobs someday and learning skills and the subject matter necessary to get a job? Or is it about some sort of radical political agenda that a particular professor [who’s] been told they get a lifetime job is going to tell them they have to believe to get an A in their class?” Sprowls told the audience gathered at The Villages, a large retirement community in central Florida, about 60 miles northwest of Orlando, one of the most electorally important areas for Florida Governor Ron DeSantis, who is up for re-election in November.

Professor J Andrew Gothard, who teaches English at Florida Atlantic University and is president of the United Faculty of Florida, pushes back against the claim that professors are indoctrinating their students.

“What we’re seeing right now in Florida is consistent big government political overreach, specifically into the classrooms on our higher education campuses.

“We’re hearing this false narrative, over and over again, that faculty are inserting their personal beliefs in the classroom, that they are ‘quote’ indoctrinating their students, forcing them to believe things that are untrue or unsupportable. Every time Governor DeSantis or other politicians make that statement, they can never find examples to prove their point.”

According to Clay Calvert, professor of law at the University of Florida in Gainesville and director of its Marion B Brechner First Amendment Project, “this is simply another attempt by a red [conservative Republican] state, the legislative body and the governor to rein in what they perceive to be liberal academia”.

The origins of critical race theory

CRT is an analytical tool that originated in legal studies in the 1980s. It focuses attention on the legacy of slavery and its legacy of structural racism which negatively affects the lives of African Americans.

One area of study, for example, is the history of redlining, the practice of denying African Americans mortgages and how it perpetuates what amounts to apartheid in America’s housing patterns.

“CRT was,” says Matthew Steffey, who teaches constitutional law at Mississippi College School of Law in Jackson, Mississippi, “a field of study known only within the legal academy and not even perhaps the most prominent thing on the minds of most law faculty. And, therefore, was an unlikely candidate to become a hot button issue.”

It became one shortly before the 2020 United States election during which Donald Trump called it “ideological poison”.

Spurred both by Christopher Rufo, a senior fellow at the conservative Manhattan Institute, who regularly appeared on Tucker Carlson’s show on Fox News where he denounced CRT, and by conservative “bill mills”, which supplied conservative legislators with drafts of anti-CRT bills, states were soon vying with each other to pass laws banning it from K-12 education.

More sober observers pointed out that CRT was not in any state’s curriculum and, save for a few anecdotal stories, there was no evidence of it being taught to primary or secondary school students.

Rufo wrongly claims that among CRT’s tenets is “race essentialism”; nor do (most) CRT scholars say that “all white people are racists”. While there are Marxist professors who use CRT, it does not take a hard-line Marxist position that says the solution to American racism “is to redistribute private property and dismantle the system of capitalism”, as Rufo asserts.

The “moral panic” over CRT crossed the pond, as became clear in January 2021 when Kemi Badenoch, then minister of state for equalities, told the British House of Commons: “We don’t want teachers to teach their white pupils about white privilege and inherited racial guilt.”

During the debate, which marked Black History Month, she indicated that England had gone where no American state had yet gone: “Any school which teaches these elements of critical race theory … without offering a balanced treatment of opposing views, is breaking the law.”

Evidence of bill mills

The evidence that the bills submitted to state legislatures in the United States are coming from bill mills is the strong similarity among their texts.

Oklahoma’s law, for example, forbids the discussion of whether “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously” or if “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by members of the same race or sex”.

Similarly, Iowa’s ban on teaching CRT in public schools enjoins discussion of whether “an individual, by virtue of that individual’s race or sex, bears responsibility for the actions committed in the past by other members of the same race or sex”.

“Some bills soften the language, some add things, but the reason the texts are so similar is because they are products of bill mills,” Vincent Wong told University World News in 2021 when he was a research associate at the New York-based African American Policy Forum.

Oklahoma was one of the first states to ban CRT from publicly funded colleges and universities. The symbolically named Bill 1775, the year the American Revolution began, which became law in May 2021, went further than banning CRT from lecture halls: it ordered the state’s public universities to end any diversity and orientation programme “that presents any form of race or sex stereotyping or a bias on the basis of race or sex”.

In other words, the universities were prohibited from teaching their students about such things as “micro-aggressions”.

In January of this year, Mississippi’s Senate Bill 2113 (SB 2113) became law. Among its 300 words are: “No public institution of higher learning, community/junior college, school district or public school … shall direct or otherwise compel students to personally affirm, adopt or adhere to any of the following tenets: a) that any sex, race, ethnicity, religion is inherently superior or inferior; or b) that individuals should be adversely treated on the basis of their sex, ethnicity, religion or national origin.”

Although CRT is not mentioned in the bill Governor Tate Reeves signed into law, which appears to use “race blind” language, the state’s media left no doubt that the bill was aimed specifically at CRT.

Mississippi Today’s headline on 20 January 2022, for example, read: “Anti-CRT bill passed out of Senate committee likely unconstitutional, opponents say.”

According to Steffey, SB 2113 misrepresents a professor’s influence over students and, even though it risks chilling constitutionally protected speech (by, for example, making teachers who are on probation shy away from teaching the history of racism or the treatment of slaves in pre-Civil War Mississippi), he thinks the law would likely withstand a constitutional challenge.

SB 2113’s prohibition on requiring students to “affirm, adopt or adhere” makes no sense in light of the fact that in 1943 the US Supreme Court ruled that schools could not require students to recite the Pledge of Allegiance.

“I can’t even get them to show up on time and to pay attention,” he said in a tone familiar to any professor or teacher.

First Amendment rights

Some legal scholars argue that by banning CRT from its publicly funded higher education classrooms, by dictating what university professors can and cannot teach, the states violate professors’ First Amendment rights as enunciated by the US Supreme Court in 1967.

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned,” the court said. “That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Steffey is less sure.

“The law’s not readily subjected to a constitutional challenge,” he says, “particularly in this part of the country.”

Neither the Fifth Circuit court at the federal level (which includes Mississippi), or the Mississippi appellate court system at the state level, would be inclined to strike down this law at its face.

“The argument I’d have to make in front of perhaps the most conservative Federal Circuit in the country or one of the most conservative state circuits is that it chills constitutionally protected speech, which would not likely be accepted,” he said.

Nor, Calvert told University World News, is the legal doctrine of academic freedom as robust as people assume.

According to Georgetown University Law Professor Gary Peller, “you have a body of First Amendment law that looks like it protects against censorship by the government, and this looks like censorship by the government”. However, over the past three decades the Supreme Court has developed a body of law that says First Amendment principles “don’t apply here, here, here and here”.

In late March, Kristi Noem, South Dakota’s governor (and possible Republican vice-presidential hopeful in 2024), signed House Bill 1012 (HB 1012) into law. This bill also makes no mention of CRT – indeed, it uses the same seemingly “race blind” language that’s in Mississippi’s bill. Nonetheless, Noem’s office issued a statement saying, “Gov Noem Signs College CRT Bill and Education Bills into Law”.

The problem with being race blind

The problem with being “race blind”, says Steffey, is that it leaves in place the racial restrictions and structures that exist when the clock is, so to speak, stopped.

“So called ‘neutrality’ helps the oppressor, never the victim. Deciding that in circa 1980 we are now a race blind country locks into place some of the longstanding effects of our history. It’s a strange proposition, because, otherwise, the South is rooted in history.

“It seems odd to suggest that this part of the past evaporates,” Steffey said, before adding that you didn’t have to drive more than five minutes from the law school where he teaches “to see that patterns of racial segregation in residential segregation by race continue to exist”.

Nathan Lukkes, the general counsel for the South Dakota Board of Regents, told me that as HB 1012 made its way through the legislature, a number of changes were made, the most important being the insertion of the clause protecting academic freedom in post-secondary institutions.

“Nothing in this act … may be construed to inhibit or violate the First Amendment rights of any student or employee, or to undermine the duty of any institution under the control of the Board of Regents or Board of Technical Education to protect, to the greatest degree, academic freedom, intellectual diversity, and free expression.”

However, Section 2 of HB 1012, reads: “The Board of Regents, or the Board of Technical Education, or any institution under their control, may not require students to attend or participate in any training that teaches, advocates, acts upon, or promotes divisive concepts.”

In 2021, while signing an Executive Order banning the teaching of CRT in public schools, Noem left no doubt as to where “divisive concepts” can be found.

“Critical race theory has no place in South Dakota schools. These ideas are un-American. We are ‘one nation, under God, indivisible’, yet critical race theory seeks to divide us based on inaccurate revisions of our nation’s history,” the governor of South Dakota said.

According to Mark Geary, professor of education at Dakota State University in Madison, South Dakota, not long after HB 1021 became law, the diversity, equity and inclusion offices came under review.

“And in many cases, the diversity, equity and inclusion officers on our campuses across the 60 universities have either been fired or have quit,” said Geary who is the president of the Council of Higher Education, part of the South Dakota Education Association, which, since the state government banned the faculty union, represents faculty interests.

Telling of the change in direction mandated by the governor, the diversity, equity and inclusion offices have been renamed “Opportunity centers”.

Given the Republicans’ majorities in both houses of the Texas state legislature, it’s a foregone conclusion that by the time the legislature rises prior to the November election, legislation will be passed outlawing the teaching of CRT in the state’s colleges and universities, as it did last year in its K-12 system.

Lieutenant Governor Dan Patrick announced that he intended to ban the teaching of CRT in the state’s institutions of higher education after the faculty council at the University of Texas at Austin (UT) passed a resolution condemning state legislative proposals “seeking to limit the teaching and discussion of racism and related issues [that] have been proposed and enacted in several states, including Texas”.

The university’s resolution went on to assert “the fundamental rights to academic freedom in its broadest sense, inclusive of research and teaching of race and gender theory”.

The vote infuriated the staunch conservative and evangelical Patrick, who lost little time in tweeting (on 15 February) that Texas “will not stand by and let looney Marxist UT professors poison the minds of young students with critical race theory. We banned it in publicly funded K-12 schools and we will ban it in publicly funded higher ed,” reported the Austin, Texas-based Courthouse News Service.

Patrick and the state’s governor, Republican Greg Abbott, as well as the 150 members for the state House of Representatives and the 31 members of the state Senate, are up for election this November.

Steffey said their electoral calculus is the same as that of the Republicans in his state of Mississippi.

“This is a solution in search of a problem. But it’s a political winner if you are running as a Republican candidate, either to obtain office or solidify your hold on office by fending off a primary challenge. There’s no political downside for the Republican support for banning CRT.”

Abolition of tenure

Patrick’s ire against the UT faculty’s vote condemning state interference in teaching and in favour of academic freedom led him to also propose abolishing tenure which would align the Longhorn State with Wisconsin, which abolished tenure in 2017, as well as South Dakota, Louisiana and Florida.

In all these states, as well as Iowa, where proponents of abolishing tenure failed to muster enough votes in the legislature, tenure has been cited as protecting professors who teach CRT.

“Apparently, this small group of professors, they don’t understand that we in the legislature represent the people of Texas, we are the ones that distribute taxpayer dollars, we are the ones who pay their salaries. The parents are the ones who pay tuition. And, of course, we are going to have a say in what the curriculum is,” said Patrick at a news conference on 18 February that was covered by the Courthouse News Service.

Following the news conference, Patrick issued a statement on his official web page.

“Tenured professors must not be able to hide behind the phrase ‘academic freedom’, and then proceed to poison the minds of our next generation. … I am further outraged that the Faculty Council told the legislature and the UT Board of Regents that it is none of their business what they taught. Universities across Texas are being taken over by tenured, leftist professors, and it is high time that more oversight is provided.

“During the upcoming 88th Legislative Session,” the statement continued, “one of my priorities will be eliminating tenure at all public universities in Texas. To address already-tenured professors, we will change tenure reviews from every six years to annually. Additionally, we will define teaching critical race theory in statute as a cause for a tenured professor to be dismissed.”

Two months later, in neighbouring Louisiana, State Senator Stewart Cathey sponsored a resolution that said post-secondary students “should be confident that they are being exposed to a variety of viewpoints, including those that are dissenting; … and that faculty members are not using their courses for the purpose of political, ideological, religious or antireligious indoctrination.”

In Florida, Sprowls also linked restructuring tenure in his state’s public universities to the ongoing fight against teaching CRT.

In 2021, the legislature passed a bill banning the teaching of CRT from primary and secondary schools. As part of this effort, and to DeSantis’ acclaim, this past April, the Florida Department of Education rejected 41% of 132 math textbooks submitted for use, some for including “race essentialism” in their pedagogy.

The bill (SB 7044) DeSantis signed into law this past April allows the state-wide Board of Governors (appointed by the governor) to arrogate to itself the power to grant and adjudge tenure on a five-year review cycle.

This system (which Texas intends to copy) overturns more than two centuries of university governance whereby tenure was granted and maintained by a professor’s colleagues, a practice specifically designed to insulate professors from political pressure.

In South Dakota, says Geary, tenure remains in name only. The abolition of the faculty union in March 2020 (which he attributes to Noem taking advantage of the COVID crisis), which prevented the union from organising an effective defence of itself, also dissolved the state universities’ system of peer review.

A similar situation exists in Georgia, where the Board of Regents did away with a two decade-old tenure review system by abolishing peer review.

Academic quality and freedom

Critics of the abolition of tenure make two interconnected arguments. The first pertains to their university’s reputation and, specifically, to the difficulty the school will face hiring premier professors.

Calvert, for example, noted that Florida’s flagship state university in Gainesville had recently been rated by US News and World Report as one of the five best universities in the country.

“The ranking has gone up since DeSantis became governor,” he says. “So, it’s unclear why in reality you would want to start meddling in the public university system that seems to be doing quite well.”

After noting that other major universities have tenure and listing a number of leading faculty in the sciences whom the University of Texas had recently recruited from Dartmouth College and the Massachusetts Institute of Technology, Jay Hartzell, president of the University of Texas, underlined the importance of tenure both to the school’s growth, its reputation and its students.

“Removing tenure would not only cripple Texas’s ability to recruit and retain great faculty members, it would also hurt Texas’s students, who would not be able to stay in the state knowing that they will be learning from the very best in the country. It would also increase the risk of other universities across the state making bad decisions for the wrong reasons.”

Hartzell also gave his back hand to the powers that Patrick plans to vest in school administrators.

“Future administrators might make annual retention decisions based on whether they or others did or didn’t like a faculty member’s current research agenda, rather than whether the quality of that research was excellent and held promise to have a positive impact on society in future years.”

The second argument defenders of tenure make is that tenure protects scholars so that they can follow where the evidence in their fields leads them. As Henry Reichman, professor emeritus of history at California State University and former chair of the American Association of University Professors (AAUP) Committee A on Academic Freedom and Tenure, wrote in Understanding Academic Freedom (2021), academic freedom has its roots in early 19th century Germany.

In 1811, while rector of the University of Berlin, the philosopher Johann Gottlieb Fichte “proclaimed the ‘free investigation of every object of thought’ to be essential to the pursuit of Wissenschaft,” which can be translated as “systematic and disciplined inquiry”, ie, an academic subject such as biology or comparative literature.

American professors who returned from their academic sojourn in Germany brought back the notion of Lehrfreiheit, “the freedom of the professor to teach in accordance with the precepts of a scholarly discipline”.

Professors of publicly funded colleges and universities may be public employees, notes Jeremy Young, senior manager for free expression and education at PEN America, but they differ from other public employees, he says, because a key part of their job is to conduct research and analysis, and teaching that is independent of their bosses.

“They can be critical of their university or colleagues or supervisors if that is where the evidence takes them. That’s different from working for a company or even a government agency where your job is essentially to advance the interests of the organisation. The interest of universities, frankly, is to employ faculty who sometimes work against the university’s interests and so tenure is absolutely necessary to protect that kind of disinterested search for truth.”

Accordingly, in its written statement responding to DeSantis’s signing of SB 7044, the United Faculty of Florida said: “If Gov DeSantis and Florida’s legislative leaders demonstrated anything during today’s press conference, it is that they fundamentally do not understand how Florida’s higher education system works.”

“Tenure,” Gothard said, “protects faculty to teach and research honestly and accurately without the threat of politicians who would fire them for doing their jobs, and it protects the rights of students to learn about whatever interests them without being told by big government how to live their lives.”

After telling me how tenure protects faculty from “political [or] ideological moves by administrators or any elected official”, Matthew Boedy, associate professor at the University of North Georgia and president of the Georgia conference of the American Association of University Professors (AAUP) since February 2020, went on to explain that “gutting tenure” in Georgia’s public universities ran afoul of the AAUP, which censured the state’s university system.

While censure by the AAUP has no legal impact, Boedy said, “everyone in higher education from the United States and around the world knows what a censure from the AAUP means.

“It means this university system has not lived up to the ideal we [professors] all agree should be in place. So, if you are the average person on the street and your kids are going to university, you want the university to be the best it can be, and without tenure, it cannot be.”

A national effort

Although DeSantis is running for re-election in November, he is rumoured to be interested in running for president in 2024 and, with polling support between 20% and 30%, he consistently places second to Trump as the Republicans’ preferred candidate.

Accordingly, I asked Gothard whether the state’s Republicans would continue their efforts to control higher education if DeSantis were to either lose his bid for re-election or leave Tallahassee for Washington DC.

“It’s a little bit of a chicken and egg question now. Are those policies spreading [across the country] because they see them happening in Florida? Or, is this more of a national effort?

“I really think there is a national effort among conservatives to try to take over higher education classrooms because they have identified that the more educated you become, the more tolerant [you are] and the less you are interested in authoritarianism and totalitarianism. The more educated you become, the more you respect the individual.

“These views that 10 or 15 years ago would have been considered very middle-of-the-road are now called wildly liberal,” he says.

For his part, Boedy thinks that professors outside the United States should care about legislative decisions about tenure.

Of course, tenure is defined differently in different countries – Canada, Sweden, Denmark, Germany, Switzerland and Belgium have systems similar to the Americans’, while Brazil, Mexico, Chile, Senegal and Japan grant tenure to very few professors – but Boedy has a warning for professors everywhere where tenure of some kind is in place.

“I would say, they’re coming for you," he says. “They’re coming for your tenure next because tenure is under attack across all levels of higher education in all countries.”