By ALICIA FEYERHERM
Tiger Media Network
The House Committee on Judiciary in the Kansas Legislature heard a bill Tuesday that would remove tenure protections for faculty at postsecondary institutions.
Currently, tenure is recognized as a property. As a property right, tenure faculty have constitutional employment protection and cannot be removed without due process and constitutionally adequate procedures. Tenure is constitutionally protected.
HB 2348 seeks to redefine tenure so it is no longer a property right. If passed, existing tenure rights would be retroactively removed.
Steven Lovett, author of the bill, said a property right can create an entitlement to future employment and this entitlement is a financial liability to the State of Kansas.
“While I am in favor of tenure and this bill does not abolish tenure, I am not in favor of it being a property right because it obligates Kansans to a long-term unfunded fiscal liability,” Lovett said during testimony.
According to Lovett, in Fiscal Year 2023, 2,834 faculty were tenured or on a tenure track within the Kansas Board of Regents Institutions. KBOR institutions include Fort Hays State University, University of Kansas, Kansas State University, Washburn University, Pittsburg State University, Emporia State University and Wichita State University. At a salary of $91,000 a year, the annual “payroll liability” would be $206 million.
“Public universities are encumbered financially and culturally by the unnecessary impediment of tenure as a property right,” Lovett said.
Lovett said some might argue tenure protects faculty’s right to academic freedom and expression, but he does not see it this way. The First Amendment already provides free speech protection to faculty members.
“A non-tenured faculty member enjoys as much legal protection to pursue academic freedom as a tenured faculty member,” Lovett said.
While Lovett said he created the bill in his personal capacity as a concerned citizen and taxpayer, he did let the committee know he is a lawyer and a tenured associate professor at Emporia State University.
Lovett felt so strongly that his rights of expression were adequately protected by the First Amendment that he publicly forfeited his tenure at Emporia State.
“I don’t need tenure to protect me from retaliation or undue influence, and for what it’s worth, I’m going to take the opportunity in this public forum, in this space, to on my own, voluntarily, to renounce and surrender the tenure I was awarded by Emporia State University,” Lovett said.
As it stands, tenured faculty can only be terminated for cause and require due process.
Lovett described tenure as “self-gain at the expenses of others” and that “tenure in the State of Kansas provides an unnecessary shelter at great financial and operational costs for our taxpayers and our universities.”
One other entity submitted written testimony in support of the bill.
Several individuals spoke in opposition to HB 2348, including University of Kansas Chancellor Doug Girard and Kansas State President Richard Linton.
Girard focused not only on the economic impact of KU-led research in the state but also on the recruitment and retention issues involved in removing tenure as a property right.
“Should we lose our ability to do meaningful tenure, we will lose our best faculty and we will not be able to replace them,” Girard said.
Linton echoed those concerns and pointed to the advancements K-State has made in areas like animal health, food safety and agriculture technology.
“Without the stability that tenure provides, we’d struggle to keep doing this essential work that gives Kansas its competitive edge,” Linton said. “It would be very difficult to retain our strong faculty and near-impossible to recruit new ones.”
Two University of Kansas professors testified in opposition.
Hans Dalton studies drugs for rare diseases.
“Research into rare diseases and more thrives in state-funded institutions, but not in industry,” Dalton said.
Since rare diseases impact a smaller segment of the population, there often is no financial incentive for companies to explore that type of research. Institutions like KU provide that avenue of exploration.
To Dalton, independence in research and tenure are the two attributes of academia that attract people. He said he has colleagues in the pharmaceutical industry who make much more money and have more benefits than he does, but the stability tenure provides is what keeps faculty in academia.
He also noted the University of Kansas has seen record enrollment numbers in the past two years so it is a “wild” time to be discussing changes to tenure.
Emily Beck studies mitochondrial diseases at KU.
“Removal of tenure will negatively impact all Kansas higher education institutions and lead to a large exodus of faculty that need stability,” she said.
George Burdick, Washburn Student Government Association president, spoke in opposition and cited support from other KBOR SGAs.
“Every single student body president represented at the Kansas Board of Regents is in opposition to HB 2348,” Burdick said.
In a statement to Tiger Media Network, FHSU Student Government President Ella Burrows said:
“The Student Government Association at Fort Hays State University strongly opposes Kansas HB 2348. Tenure is vital for fostering academic freedom and enables professors and faculty members to explore diverse research areas and to teach students about the challenges they will face in the future. Our tenured faculty create an intellectually stimulating environment that encourages critical thinking and equips us with the skills necessary to solve complex problems.”
Director of Government Relations and Legislative Affairs for the Kansas National Education Association Timothy Graham emphasized the importance of tenure for academic expression.
“Tenure does play a vital role in preserving academic freedom, and those conversations have to be done in the classrooms,” Graham said.
Having tenure does not mean faculty are no longer held to a high standard.
“We don’t enjoy unlimited rights. We know it to be conditional. We know we have obligations when we earn tenure,” said Kim Morse, representing Washburn University Chapter of the American Association of University Professors.
Ron Barrett-Gonzalez, committee co-chair for American Association of University Professors, said the legislation also threatens the accreditation for several programs.
Schools of Law and Schools of Engineering are accredited by external entities, and those entities require tenure as part of accreditation.
“The very definition of tenure under HB 2348 is incompatible with ABET (Accreditation Board for Engineering and Technology) norms,” Barrett-Gonzalez said.
Barrett-Gonzales also said Lovett had ulterior motives in authoring the bill.
“The bill as proposed is specifically introduced not to advance some noble cause or item of great interest to the taxpayer, but to address directly to a case that is currently being litigated before the U.S. District Court of Kansas,” Barrett-Gonzalez said.
The case he is referring to involves Emporia State University. In 2022, the university dismissed 30 tenured or tenure-track faculty. Lovett is named as a defendant in that case.
Lovett said Emporia State had no knowledge of the bill before he submitted it.
He also said the dismissals were in line with a Kansas Board of Regents policy that states “tenure is a privilege that must be affirmatively granted by the institution in recognition of meritorious performance.”
President and CEO of KBOR Blake Flanders testified in opposition, saying KBOR’s policy for Emporia State was due to declining enrollment and should not be taken as precedent for all KBOR institutions.
“I don’t see a conflict there between the fiscal management at one university versus another university saying, ‘Please don’t remove this because we won’t be able to recruit any high-end research faculty,’ ” Flanders said.
Regardless, Barrett-Gonzalez asked the legislature to refrain from action.
“It would be inappropriate for the legislature to attempt to interfere with a case before the court, especially as the case is being actively heard and has not made it through the entire appeal process,” Barrett-Gonzalez said.
“The bill could bring about very serious and lasting harm to the people of the State of Kansas all to advance a short-sighted attempt to meddle in an issue which is squarely before the courts.”
Finally, the question remains: If tenure does not protect employment, what does it do?
To Lovett, the tenure privileges would be decided by the institutions themselves.
“I think it would be up to each institution and/or the Board of Regents to identify what is meant by it being a meritorious designation based upon meritorious work, but not as a guarantee of future employment,” Lovett said.
Girard disagrees, stating security in employment is what tenure is.
“I would argue that it is the functional core of tenure,” the KU chancellor said.
Twenty-three other entities filed opposition written testimony.
The committee has not voted on the bill. If passed out of committee, it would then move on to the House of Representatives.
In 2014, the Kansas Legislature voted to end tenure for public school teachers at the secondary level. After legal battles, the state’s Supreme Court upheld the law ending the tenure in two separate rulings in 2017 and 2018.
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