New North Dakota law to alter the way tenure is reviewed

A bill passed by a committee of North Dakota’s House of Representatives (HoR) last week opens the door to members of the public being placed on tenure review committees in the state’s public colleges and universities, says PEN America, the Washington DC think tank that monitors academic freedom and censorship in the United States.

House Bill 1437 (HB 1437), which is expected to become law, does away with the present practice whereby tenure and tenure review committees are made up of faculty and puts in place a committee on which there can be “no more than one other faculty member”.

It would apply to each of the state’s 11 public colleges and universities, including the University of North Dakota (Grand Forks), the state’s flagship institution, which was recently ranked by the Carnegie Foundation as one of the nation’s R1 Research Universities.

According to Jeremy Young, director of state and higher education policy at PEN America, the bill says that the committee must include the faculty member, the administrative supervisor of the faculty member under evaluation or review, that is to say, the department or programme chair, at least one ranking administrator, and no more than one other faculty member.

“It does not say it does not place any limits on who else can be added to that committee. It could be Christopher Rufo,” said Young, naming the right-wing darling of Fox News, who rose to fame and influence by attacking critical race theory (CRT) and diversity, equality and inclusion (DEI) programmes.

Rufo was more than a foot soldier in Florida’s Republican governor Ron DeSantis’ attack on New College for being too liberal and in the remaking of Florida’s only public college along conservative lines.

Dr Eric Grabowsky, who taught communication courses at Dickinson State University (Dickinson, North Dakota) for about 14 years and has provided public commentary through media and to legislators on issues pertaining to the governance of the state’s public colleges and universities, pointed out a logical inconsistency between the make-up of the committees that decide on granting tenure – which apparently will remain largely made up of faculty – and the review committees to be established under HB 1437.

“The post-tenure review committee as envisioned by the current version of the bill involves a significant reduction in faculty input compared to the granting of tenure in terms of what would be typical for institutions in the North Dakota University System,” Grabowsky told University World News.

“Typically, the granting of tenure (and promotion in rank) involves various committees that are largely composed of faculty members. Final decisions rest with management, but there is a lot of faculty input.

“And, with the current rules, to terminate a faculty member (tenured) would prompt the possibility of an appeal to a faculty committee (of tenured faculty), although the president of an institution still makes the final decision. This bill would reduce involvement of faculty input in the case of the post-tenure review process and possible termination,” said Grabowsky.

A flaw

According to State Representative, Republican Mike Motschenbacher, the bill is now before the HoR, where it is expected to pass, necessitated by the fact that two years after the State Board of Higher Education promised to come up with a new tenure evaluation scheme, none had been put forward.

“Let’s just say it was a lot of talk, but really no action. So, the legislature just decided that maybe we need to speed up the process a little bit here. That’s why you’re seeing this bill right now, which gives them until 1 July 2026 to have the system in place,” he said.

Motschenbacher told University World News that, as passed by the committee, the bill does not admit including anyone from outside the university on the tenure review committee.

Young suggested that its sponsor (Motschenbacher) may not be aware of the flaw in the bill opened by the phrase “The committee must include”, which, Young said, does not preclude additional members being named.

Referring to both the final version of the bill and the previous one, which occasioned PEN’s press release of 12 February titled “North Dakota Bill Threatens to Undermine Faculty Tenure System”, Young explained: “This language [in the present bill] actually hasn’t changed. It has been tightened up a little bit, so it’s all in one sentence, whereas previously it was laid out in a paragraph.

“But they have not said that the committee must include no more than these people. It only says that these people must be on the committee. But the committee could be 25 people, and the other 22 could be random citizens.”

For her part, Amy Reid, senior manager for PEN America’s Freedom to Learn programme, said the proposed law makes tenure meaningless.

“Having a committee that limits faculty participation and opens up the possibility that someone with an axe to grind and who lacks the expertise to actually or fairly evaluate faculty work, that’s a problem,” said Reid, who was chair of the college-wide faculty and a member of the board of trustees of New College when appointing members of the public was debated by the trustees during the period Rufo was leading the attack on liberal education at New College.

Business vs academy

Motschenbacher’s thinking about tenure review is based not on experience as an academic but, rather, he explained, on his 34 years of experience in the private sector and as the manager of over 1,000 employees.

“I just don’t think that it’s a good idea to have mid-level employees [professors] analyse and do a review for another mid-level employee. I think you have to have someone who’s at a higher level,” he told University World News.

“What’s it going to accomplish to have two people of the same level reviewing each other and then patting them both on the back and saying: ‘You’re doing a great job. Congratulations. Let’s move forward’,” he said.

Professors, who are experts in their field, and by convention (and in some places law), have wide latitude to determine their day-to-day work as teachers and academic freedom in determining the subjects of their research, would, no doubt, take umbrage at being considered ‘mid-level employees’.

Grabowsky strongly disagreed with Motschenbacher’s view of the professoriate and set it in the context of a philosophical “standoff” about the meaning and purpose of higher education in America today.

“This is very much an American dilemma. You have a standoff between the classical model of what it means to be educated versus the workforce model of putting out trained specialists.

“I don’t want it to seem that I’m dismissing the other side because higher education is not divorced from the workforce, but I would encourage my fellow travellers on the right that they need to remember that the intellectual legacy of the West speaks to some distinct areas between what it means to be a business and what it means to be an academy,” stated Grabowsky.

“And though there are important analogies that we can make between the two, such as accountability and good stewardship of resources and so forth, there are important differences that make an academic home different from a corporate business.

“We would not expect corporations or any business, whether they’re privately held or otherwise, to run exactly like an academy. We should not expect the academy to operate like a business,” explained Grabowsky.

Attributes of a guild

In an email to University World News, John A Douglass, senior research fellow and research professor for public policy and higher education at the Center for Studies in Higher Education, University of California at Berkeley, wrote that pro-forma tenure reviews are a problem, but for them to be informed and valuable, “the central concept is that faculty peers are the best at evaluating the teaching, research and public service activities and the impact of their fellow faculty in the discipline they work in or related academic fields”.

As did Grabowsky, who alluded to Plato and Aristotle in our interview and used the word ‘academy’ in its most fulsome sense, Douglass reached back to an older, even mediaeval, term – ‘guild’ – when sketching what North Dakota’s legislators miss by signing on to a modern, corporate view of university governance and its personnel.

“Lawmakers in North Dakota and elsewhere need to understand that faculty are the vital core of any college or university, and they have the attributes of a guild – a professional community that largely competently regulates itself and with professional standards, not unlike doctors,” Douglass wrote.

Accountability, Douglas continued, is important and involves academic administrators in the most profound way.

“Department chairs and deans have the responsibility of forwarding peer-reviewed recommendations to the president and provosts. And they in turn generally have final review and decision-making on hiring and promotion. In a system that works well, it is rare that an academic administrator goes against the decision of the faculty-driven post-tenure review process,” Douglass wrote.

A letter from PEN

PEN will be sending a letter to the North Dakota government outlining its concerns.

“What they should be doing,” said Young, “is [to] remove prescribing anyone who should be on the tenure committee. They should leave it open to the university because by prescribing some people and not others, they have created this opening.”