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Tenure disputes are hardly rare. What makes James C. Wetherbe’s case unique is that he’s not fighting for tenure, but against it.

In a recently filed federal lawsuit, Wetherbe accuses Texas Tech University of violating his First Amendment rights by denying him two promotions on account of his anti-tenure stance.

“I never expected something like that to happen at the end of my career but, given that it has, I’ve decided to challenge the system and see what happens,” said Wetherbe, a Texas Tech alumnus who’s served as a business professor there since 2000. “The question I’m concerned with is if freedom of speech is sufficient protection for you to be able to teach and research as long as you’re not doing misconduct and writing the truth as you understand it to be.”

According to the suit, Wetherbe was up for two key jobs within the last year: a Paul Whitfield Horn Professorship, the highest honor bestowed upon a faculty member, and dean of the Rawls College of Business. But Provost Bob Smith, who has said under oath that Wetherbe’s tenure views made him unfit for either job, along with former university President Guy Bailey, ignored the recommendations of two search committees and blocked him from further consideration as dean and Horn Professor.

In an e-mailed statement, Smith said university policy requires all professors to be tenure-track, and for all Horn Professors to be professors by that definition. Deans are not required to be tenured, he added, but the eventual appointee, Lance Nail, was an “outstanding candidate” and the “right choice” for that position.

“Neither Dr. Wetherbe’s views on tenure, nor the fact that he has chosen not to submit himself to the tenure process had anything to do with my choice of Dr. Nail as dean,” Smith said.

But Wetherbe disagreed, saying that the Horn professor search committee’s recommendation should have been forwarded to the Board of Regents for confirmation, regardless of Smith’s interpretation of tenure policy. He also accused university administrators of trying to change that policy in light of his case. (Indeed, the university has amended its operating procedure regarding tenure since last year, as it now states that assistant, associate and full professors are tenure-track positions. The previous policy calls such faculty “eligible” for tenure consideration.)

Jay Conover, Horn Chair of statistics at Texas Tech who nominated Wetherbe to the professorship, also said Smith “did a tremendous injustice in killing Dr. Wetherbe’s nomination for Horn Professor on the basis of refusing tenure, and a faculty grievance committee unanimously agreed with me on this. They recommended his nomination be forwarded to the [university] Board of Regents, and recommended that if the provost wanted tenure to be a prerequisite he should change the [operating procedure] to that effect, which he is currently attempting to do.” Conover also said he thought Wetherbe would have made a good dean at Rawls, and that his colleague tended to keep his views on tenure to himself.

Smith has made other comments that lead Wetherbe to suspect bias in his deanship decision; in a deposition related to a separate libel lawsuit the professor recently filed against another faculty member, Smith stated that it would be “wrong and unfair” for someone without tenure to be making tenure decisions about other people.

Still, it's not unheard of for universities to require that certain positions be held by tenured professors. At the University of Texas at Austin, for example, endowed faculty chairs must be held by full professors with tenure, according to information from the office of the provost (although a new research chair can be awarded to a non-tenure-track professor). Deans are also tenured professors.

Despite the complexities of the case, one thing is clear: Texas Tech does have higher-than-average tenure rates. While American Association of University Professors estimates about two-thirds of all appointments in higher education are held by non-tenure-track faculty, some 67 percent of Texas Tech faculty members are tenured or tenure-track.

A university spokesman said Wetherbe was offered a “fast track” to tenure related to the Horn Professorship. But Wetherbe said that to have accepted the offer would have undermined 20 years of working successfully outside the tenure track. He also noted that the qualifications for the Horn Professorship were more stringent than those for tenure, and that a search committee had recommended him twice for the position. Wetherbe also already holds an endowed chair at the university, the Robert G. Stevenson Chaired Professor in Information Technology (he is also the founding director of the Institute for Internet Buyer Behavior there).

“He’s definitely sticking to his beliefs,” the university spokesman said. “But the policy is the policy.”

Wetherbe voluntarily resigned tenure two decades ago from the University of Minnesota, where he taught business. He was holding a joint appointment at Minnesota and the University of Memphis at the time, he said, and felt pressure from the former institution to return following a three-year arrangement. When an administrator said he’d have to come back or give up his tenure, Wetherbe made what he called an easy choice. He’d already noticed faults in the tenure system, including what he perceived as ineffective professors who were “coasting” through their guaranteed careers at the expense of students and the institution.

Wetherbe’s maintained a foothold in the business world throughout his career, including a stint on Best Buy Co.’s board of directors, and colleagues outside of academe have repeatedly validated and praised his rejection of tenure, he said. The professor described himself as a quiet advocate of his position, but said that  higher education could benefit from rethinking tenure – possibly by putting professors on three-year rolling contracts that provide some stability during research and other periods, but also motivate them to perform.

"What if one partner in a marriage had tenure and the other didn't?" he asked, quoting a favorite analogy. "It's really a one-way contract."

Although he acknowledged his views could be considered controversial by some scholars, Wetherbe said he believed tenure today was more about job security than academic freedom. Labor laws have evolved to protect workers far better than they did more than a century ago, at the birth of tenure, he added.

Wetherbe continued to work at Memphis and Minnesota through 2000, when he moved to Texas Tech. He said he made his views on tenure known upon hire, and he was put on a one-year rolling contract (with a one year’s notification of termination clause). The administration at that time was supportive of his decision, he added.

Things suddenly came to a head due to turnover in university administration and simultaneous promotion opportunities, he said.

Although Wetherbe is still teaching on his normal schedule, the events of last year have left him in a kind of “limbo,” he said. “They’ve not responded to questions about the status of my contract.” (A university spokesman said: “The university is in the process of creating a ‘professor of practice’ title that would be most appropriate.  At this time, there are no plans to change Dr. Wetherbe’s title, and at no time has he been threatened with termination.”)

In his suit, Wetherbe asks the court to require that Texas Tech honor his contract and allow him to retain the title of professor, under which he’s been teaching for some 30 years. He’s also stated that he’ll donate any settlement, minus legal fees, to student scholarships to Texas Tech.

Whatever happens, Wetherbe considers himself a kind of “case study” for academic freedom. “I think it’s a conversation worth having,” he said. “I didn’t see this coming, but I’m glad it happened toward the end of my career, when I have at least (30) years under my belt.”

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