Texas Senate’s priority bills on higher ed would end tenure, diversity policies

The bills are part of Lt. Gov. Dan Patrick’s list of priorities and, if passed as filed, could have profound impacts on how Texas universities recruit top faculty and other employees.

click to enlarge University of Houston students return to their campus on Sept. 5, 2017, after Hurricane Harvey. - Texas Tribune / Michael Stravato
Texas Tribune / Michael Stravato
University of Houston students return to their campus on Sept. 5, 2017, after Hurricane Harvey.
A bill filed Friday in the Texas Senate would prohibit public colleges and universities from awarding tenure to professors hired after September, legislation that critics have said would make it extremely difficult for the state to recruit top faculty and negatively impact the reputation of its higher education institutions.

The bill, filed by Sen. Brandon Creighton, R-Conroe, is one of three pieces of legislation in Lt. Gov. Dan Patrick’s list of priorities for higher education this session.

Creighton also filed a bill that would prohibit Texas’ higher education institutions from considering diversity, equity and inclusion when hiring new employees. The third bill, filed by Sen. Bryan Hughes, R-Mineola, would prohibit faculty members from teaching that any race, ethnicity, sex or political belief is "inherently superior to another."

If they pass as filed, the bills would markedly change how the state's universities operate.

Critics contend this legislation will create a chilling effect in college classrooms as teachers and students try to determine what is acceptable to discuss, putting restraints on core tenets of higher education, such as academic freedom and free inquiry.

"Tenure and academic freedom were designed to protect scholars who sometimes study unpopular things, from the very kinds of political influence that Texas and Florida and other states are trying to exert over the classroom," said Victor Ray, a professor at The University of Iowa who has written a book on critical race theory.

"[This] harms the U.S.'s ability to create new ideas and innovate and do the kinds of things that conservatives claim they're interested in doing. If there's entire branches of ideas that are off the table, you can't debate them and figure out what's right and move forward."

Last year, Patrick announced a proposal to eliminate tenure for future hires as a way to combat faculty members who he said “indoctrinate” students with teachings about “critical race theory.”

Critical race theory is an academic discipline that studies the way race and racism have impacted America’s legal and social systems. Over the past few years, conservatives have used “critical race theory” as a broad label to attack progressive teachings and books in college and K-12 schools that discuss how race and racism are taught in schools.

When Patrick released his list of legislative priorities earlier this session, he called Hughes' bill a ban on "critical race theory" in higher education. Patrick’s announcement to ban tenure was also in response to a resolution issued by the University of Texas at Austin Faculty Council in February 2022 affirming instructors’ right to teach about racial justice and critical race theory in the classroom.

Since then, multiple university system leaders have expressed concerns that eliminating tenure might harm their ability to recruit top faculty. Last year, House Speaker Dade Phelan said he disagreed with Patrick’s proposal to end tenure. Abbott has been largely silent on the issue.

As filed, Creighton's bill would let employees who have or were awarded tenure before Sept. 1 hold on to the benefit. And it allows the board of regents of a university system to establish their own "tiered employment status for faculty members."

Tenure is an indefinite appointment for university faculty that can only be terminated under extraordinary circumstances. Professors who are considered on track to earn tenure typically work for five or six years as a professor before they go through a monthslong tenure review process. Typically, all tenured and non-tenured faculty already receive annual performance reviews, while tenured professors undergo a periodic review process. At UT-Austin, for instance, tenured professors undergo a comprehensive review of their teaching, research and other contributions to the university every six years.

In a press release Friday, Creighton criticized tenure as "a costly perk that is detrimental to innovative research and quality instruction."

“At a time when colleges and universities have unprecedented endowments, bloated administrative costs and ballooning tuition it is time for lawmakers to reevaluate an outdated practice that guarantees lifetime employment at taxpayer expense,” he said.

Creighton also filed a bill that would prohibit the use of diversity statements in hiring; ban offices that focus on diversity, equity and inclusion efforts; and expand the powers of boards of regents in hiring top administrators at their universities.

Under the bill, board members, who are appointed by the governor, would be able to approve or deny the hiring of vice presidents, provosts and deans, as well as approve courses in the core curriculum.

The bill says that universities cannot require students or faculty members to "endorse an ideology that promotes the differential treatment of an individual or group of individuals based on race, color, or ethnicity."

Last month, Gov. Greg Abbott’s office sent a letter to public universities and state agencies saying that considering diversity, equity and inclusion in hiring practices violated federal and state employment laws and barring them from hiring on factors “other than merit.” Legal experts have said the governor’s office mischaracterized the legal practices employers use when considering diversity in their hiring.

In response to the governor’s order, multiple university systems prohibited diversity statements in future job applications. These statements are short essays where a potential employee could describe their experiences working with diverse student groups or share their experiences working with diverse populations and their commitment to helping a diverse group of students succeed. Conservative critics have characterized them as political litmus tests.

Creighton's bill prohibits these statements statewide. It also says a university may not create or have a diversity, equity and inclusion office that considers anything but "color-blind and sex-neutral hiring processes," conducts trainings or activities related to "race, color, ethnicity, gender identity or sexual orientation," unless those trainings are approved in writing by the university's general counsel and the Texas Attorney General.

The bill says the Texas Higher Education Coordinating Board will maintain a list of people who are found to violate this section of the law, and that universities cannot hire people on that list. If the coordinating board finds that a university violates this section, it can charge the school up to $1 million or 1% of the amount of the institution's operating expenses for the prior fiscal year.

“The elevation of DEI offices on campuses have only furthered divides and created a chilling effect on open dialogue," Creighton said in the press release. "This legislation will ensure Texas college campuses are environments that are open to differing ideas, foster meaningful, reasoned dialogue, and encourage intellectual discourse.”

Also on Friday, Sen. Joan Huffman, R- Houston, filed another bill creating a new endowment stream for Texas Tech University, the University of Houston, Texas State University and the University of North Texas.

The bill would rename the existing National Research University Fund, which provides extra funding to universities trying to boost their research arms, to the Texas University Fund.

Texas voters must approve a constitutional amendment allowing the change and to add $2.5 billion to the endowment before the state can officially start the fund.

Disclosure: The University of Texas at Austin has been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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