Since January of 2021, state legislatures have proposed over 100 bills limiting teaching in classrooms. These topics include race, American history, gender identity, sexual orientation, politics, and Critical Race Theory (understanding the social constructs of race and the systemic barriers in American society).
PEN America, a non-profit organization dedicated to free speech, tracks this type of legislation.
- In South Carolina, a proposed bill prohibits teachers from discussing any topic that creates “discomfort, guilt or anguish” based on a political belief including topics like racism and antisemitism.
- In North Dakota, a ban on Critical Race Theory has confined teaching racism as an individual bias or prejudice, rather than a systemic problem in American society.
- In Georgia, four proposed bills would ban the teaching of concepts that cause “guilt, anguish, or any other form of psychological distress” based on a student’s race, sex, or identity.
While many of these bills restrict K-12 education, recently state legislatures expanded the scope into higher education causing new concerns for academic freedom and the protection of tenured faculty positions.
- In Texas, Lieutenant Governor Dan Patrick stated in a news conference that those who teach Critical Race Theory at public institutions of higher education would have a prima facie good cause claim to have tenure taken away. This announcement came after the University of Texas at Austin’s Faculty Council passed a resolution on Monday, February 14, 2022, rejecting any attempts of external forces to restrict or dictate the faculty curriculum, including topics related to race and social justice.
- In Florida, the state legislature approved a bill that allows the Board of Governors to call for post-tenure review every five years.
What is academic freedom?
The concept of academic freedom, formulated in Germany during the eighteenth century, is encompassed in two words – Lernfreiheit and Lehrfreiheit.
- Lernfreiheit – “freedom to learn” – the freedom of a student to learn unrestricted in the ability to read, study, and gain knowledge.
- Lehrfreiheit – “freedom to teach” – the freedom of a professor to do independent research and to teach those findings to students without fear of retribution from a higher authority.
In the American context, the Global Colloquium of University Presidents defined academic freedom in the “Statement on Academic Freedom” as:
The activities of preserving, pursuing, disseminating, and creating knowledge and understanding require societies to respect the autonomy of universities, of the scholars who research and teach in them, and of the students who come to them to prepare for lives as knowledgeable citizens and capable leaders. The autonomy of universities is the guarantor of academic freedom in the performance of scholars’ professional duties.
Furthermore, the American Association of University Professors (AAUP) published the main concepts of academic freedom as the ability for a teacher to (1) have freedom in research and the freedom to publish the results of that research; (2) the freedom to discuss those findings in the classroom, and (3) to speak and write like any other citizen free from institutional censorship or discipline.
In the legal framework, academic freedom has also been explained by the Supreme Court to allow institutions freedom from government intrusion. In Sweezy v. New Hampshire, the Court said:
The essentiality of freedom in the community of American universities is almost self-evident…To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation…
Ten years later, the Court elaborated further in Keyishian v. Board of Regents of Univ. of N.Y. on academic freedom and a commitment to safeguarding it by stating “[academic] freedom is, therefore, a specific concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
How does tenure protect academic freedom?
Tenure is a form of employment security where institutions of higher education can give the permanent status of a job to a professor. The only way that a professor can be fired is with proper cause and through proper procedures. In this way, tenure provides professors with a guarantee of academic freedom since they cannot be fired for the research or ideas that they bring to the classroom.
Tenure has garnered criticism from politicians who use it as a “punching bag”, blaming it as the reason that liberalism has gone unchecked in higher education. Tenure has also been criticized because of its secretive and selective process that creates limited opportunities and historically has served as a barrier to promoting diversity in academia. However, despite these failures, supporters of tenure point to the intersection with academic freedom to allow professors to discuss topics “such as race, religion, or gender – that might offend someone”.
The call to end tenure has raised concerns that an institution will face challenges recruiting knowledgeable professionals to the campus and keeping the professionals that are currently present without the promise and security of tenure. Jay Hartzell, president of The University of Texas at Austin, noted in a message to the campus on Monday, February 21, 2022:
Removing tenure would not only cripple Texas’ ability to recruit and retain great faculty members; it would also hurt Texas 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 universities across the state making bad decisions for the wrong reasons. 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 University of Texas is not the first institution to deal with government intrusion in the tenure process. In 2015, the University of Wisconsin had to deal with Governor Scott Walker weakening tenure protections. While the University of Wisconsin was able to sustain faculty through the time, they paid costly incentives to keep their top researchers at the institution.
In contrast, Chatham University has decided to make the switch from renewable contracts back to the tenure process. They found that younger faculty would use their positions at Chatham to gain experience to become better candidates for tenure-track positions at other institutions. The switch to a tenure-track process supplies the institution with further recruitment options for candidates who would have never considered the institution without the promise of tenure.
Why do academic freedom and tenure matter in the current climate of state legislation?
Ideally, institutions of higher education provide a place where there can be open discussion and debate, being that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’” (Healy v. James). This open “marketplace” depends on students and faculty engaging in conversation without fear of punishment or reprisal.
Tenure and academic freedom allow faculty to express views that might be unpopular with the public at large or disfavored by university administrators. They also enable the continued passing of knowledge, challenging of ideas, and pursuit of research. These new legislative proposals, instead, suggest faculty should second guess how they teach because it may challenge students’ thoughts. However, that challenging of thoughts and ideas is exactly what should be happening in the classroom and on campus. Tenure protections and academic freedom, including the control of curriculum, are bright lines set in case of precedent by the Supreme Court.
The current climate of legislative activism is unjustifiably motivated by ideology. As Jeffrey G. Blodgett, president of the Texas Conference of the American Association of University Professors noted, “Rather than being politicized, the concept of tenure should be embraced by those who truly believe in free speech. While we might not always like someone else’s opinion, we should all stand up for their right to express that opinion.”
There is already a chilling effect from these proposed statutes in education. Professors are already expressing their concerns and doubts as to how much longer teaching particular topics can occur. This couples with a recent opinion essay in the New York Times arguing that students are self-censoring sparking continued discourse for institutional commitment to freedom of expression and the professor’s role to create classroom dialogue with a variety of opinions. This is not just about red or blue states, but instead about how institutions of higher education respond to partisan pressure from outside forces – choosing to protect faculty and the rights of tenure and academic freedom or succumbing to the pressure. This fight, which has already started on some campuses, must not only be championed by higher education administrators but also carried forth to the halls of legislative offices and courthouses.
Elizabeth Becker is a law student at Loyola University Chicago School of Law with experience in higher education administration and wrote this blog post as part of the Education Law Practicum.
