Firing Tenured Faculty, With No Appeal Right

North Dakota’s House majority leader has introduced legislation that would let presidents of at least two colleges, Dickinson State University and Bismarck State College, fire tenured faculty members based on those presidents’ own, unappealable reviews.

The final paragraph of the roughly two-page House Bill 1446 is this:

“The president and any administrators delegated to assist the president shall fulfill these duties without fear of reprisal or retaliation. No complaint, lawsuit or other allegation is allowed against a president or other administrator for actions taken pursuant to these provisions.”

“You look at this bill—it’s so over-the-top, it’s a problem,” said Eric Grabowsky, an associate professor of communication at Dickinson State.

Dickinson State president Steve Easton said Mike Lefor, who leads the Republican supermajority in the state’s House of Representatives, told him he was considering a bill affecting tenure and asked Easton for his thoughts.

Lefor also, Easton said, asked Easton to draft something for him. Late Wednesday afternoon, Easton provided Inside Higher Ed what he believes is the rough draft he gave Lefor.

Easton said he largely supports Lefor’s legislation.

In a brief interview Wednesday, Lefor, who said he had to rush to a meeting, said he doesn’t see the bill as getting rid of tenure.

“It makes tenured professors accountable, just like anyone else,” he said. “You take the private sector—you’re accountable to a boss.”

The legislation could apply to every North Dakota college or university “under the control of the State Board of Higher Education.” That’s about a dozen colleges or universities, including the University of North Dakota.

While the bill references a “four-year pilot program” that is “focused on” Dickinson and Bismarck State, and says the pilot “may not apply to a research university,” it goes on to reference the new review and firing powers of “the president of each [emphasis added[ institution of higher education under the control of the State Board of Higher Education.”

“I would agree with you that it’s not as clear as it needs to be on that issue,” Easton told Inside Higher Ed Wednesday, though he said he “would prefer this be across our system of 11 institutions.”

Regarding the bill’s ban on suing presidents, Easton, a Stanford University Law School graduate, reads it as preventing a private right of action against the president personally.

“It doesn’t say the university cannot be sued, it says the president may not be sued,” he said.

Easton also said he supports a suggestion he’s heard to change the bill to let a faculty member appeal to the State Board of Higher Education or the North Dakota University System chancellor. But he nonetheless continues to support the bill.

“We get our support, at Dickinson State, from our students, who pay tuition; from the taxpayers, who provide generous and very helpful financial support to us; and from friends of the university, who contribute donations that help us to provide an opportunity for our students,” Easton said. “None of those people is interested, in my view, in providing funding for faculty members who are not productive, institution-enhancing faculty members. I do not think this bill ends tenure—that is an alternative, by the way, that some people propose.”

Easton said “the posttenure review that has been adopted at many institutions in the United States has generally been controlled by the faculty,” and “it has become, unfortunately, a toothless process.”

“I do not believe that it is wise for people to have a job status without effective and practical duties and responsibilities,” he said. “I believe all of us should have a supervisor, as a practical matter, and I think tenure—to the extent that tenure can be used to ignore the directives of supervisors, or continue to be a nonproductive member of an institution—it is hurting.”

‘Not Done in This Way’

Grabowsky, the Dickinson State professor, said he doesn’t oppose debates about how to improve tenure rules, but “not done in this way.”

He said that on issues regarding management and finances, it’s “often tenured faculty who are the only ones who can speak up, or have the latitude to speak up.” Those are issues taxpayers and students may be interested in.

Under the bill, presidents would be able to conduct these faculty reviews at any time. The bill would add new requirements that faculty members would be expected to meet under the reviews. They include, among other things:

1. “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.”
2. “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.”
3. “Effectively teach and advise a number of students approximately equal to the average campus faculty teaching and advising load.”

The bill later says, “The president of an institution may assess and review other factors relevant to the faculty member’s employment and the interests of the institution and the institution’s students.”

It doesn’t explain what “other factors” may or may not be considered. Easton said he doesn’t read it as meaning that “other factors” could be used to terminate.

The bill does say, “The president is subject to review and assessment by the state commissioner of higher education and the State Board of Higher Education for the reviews the president conducts under this section.”

Easton said many tenured faculty members are “productive.”

“I believe they have nothing to fear from this bill,” he said.

The bill is labeled an “emergency measure,” which Lefor said means it will take effect upon the governor’s signature and requires two-thirds’ approval in both legislative chambers.

There are 82 Republicans and 12 Democrats in the House, he said, and 43 Republicans and four Democrats in the Senate.