New Threats to Tenure and Faculty Speech

In near secrecy last month, Mississippi’s Board of Trustees of State Institutions of Higher Learning changed how faculty members get and maintain tenure.

Instead of the board having final say on tenure candidates at all eight public universities in Mississippi, as has long been the case, campus presidents will now make those decisions. The board will review only appeals to tenure decisions.

That shift alone isn’t concerning to most faculty members. But the board at its April meeting also revised the campus presidential search and selection process so that it is almost entirely up to trustees. Among other changes, trustees now will appoint a search advisory committee only by choice, and any committee members will work independently and confidentially, as members’ identities will not be disclosed to each other. Front-runner candidates’ campus visits are not required, and the board may recruit presidential candidates up to the point of selection. So professors worry this will minimize, or even eliminate, faculty say in who gets to become a campus president in the first place—a prospect that’s all too real to professors who lived through the controversial appointment of Glenn Boyce as University of Mississippi chancellor in 2019. (Boyce was initially a consultant for the chancellor search and was never submitted as an official candidate.)

Collegiality, Communication and ‘Contumacious’ Conduct

Most troubling to faculty members: beyond the typical triad of teaching, research and service, institutions “shall” now judge tenure and posttenure review candidates by their collegiality; “effectiveness, accuracy and integrity in communications”; and lack of “contumacious conduct.”

The board’s revised policy quotes, in part, the American Association of University Professors’ 1940 Statement of Principles of Academic Freedom and Tenure. Specifically, the board cites the AAUP’s stance on extramural speech, that professors “should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.” Yet the AAUP has since 1940 qualified this so-called admonitions paragraph of its statement, and otherwise made clear that the statement is meant to emphasize academic freedom, not its limits.

No Input

The AAUP and other academic freedom advocates have also long opposed collegiality and similar concepts as distinct criteria in tenure decisions, for their potential to introduce dangerous levels of subjectivity into the review process. The AAUP doesn’t discount collegiality entirely but argues that one’s ability to engage in “collaboration and constructive cooperation” is already accurately and appropriately reflected in their teaching, research and service records.

Unlike major recent changes to how tenure works in in Georgia and Florida—which faculty groups vocally opposed as their governing board and state Legislature, respectively, weighed them—those in Mississippi were entirely unknown to professors until they were a fait accompli. And it appears that was by design. According to reporting by Mississippi Today, which is how most professors learned of these changes, the board did not even discuss these revisions at its April meeting because they were part of a special consent agenda.

Documents from the April meeting, called a board book, say the new polices “were discussed in detail during the March 2022 Board meeting.” But Mississippi Today reported that the March meeting was held in Meridian, Miss., instead of the typical location for trustee meetings in Jackson. And while other board meetings are livestreamed for the public, this one wasn’t.

It’s also unclear how much of a heads-up, if any, system presidents and provosts got, and if they were able to offer any input. In a statement to Inside Higher Ed, Caron Blanton, board spokesperson, said that “presidents were present at the board meeting where the policy changes were approved and they were sent the draft board book containing the proposed policy changes a week before the board meeting.”

Noel Wilkin, provost at the University of Mississippi, the state’s flagship, said via email that while “we did not have a chance to offer input into the changes, we will work with our faculty to analyze how to implement these changes within our campus processes and outline the necessary definitions around the terms that have been added to the policies.”

In any case, now that the secret’s out, faculty and academic freedom advocates are voicing dissent.

“We have issues with content, and we have issues with process,” said Daniel Durkin, chair of the Faculty Senate and associate professor of social work at Ole Miss and president of the University Faculty Senates Association of Mississippi, who confirmed that no Faculty Senate knew about the revisions before they were approved. “The process is kind of the easiest one to deal with, because it was done in secret, really. They changed the location of the meeting. Let’s just say that, for the heck of it, I had decided to go attend the board meeting, because it’s supposed to be a public meeting. I would have probably gone on down to Jackson and prepared to attend the meeting in Jackson. They didn’t have it in Jackson. They had it in Meridian.”

And, Durkin said, “They did not simulcast like they normally do.”

On content, or the substance of the changes, Durkin said the new tenure standard is concerning “for obvious reasons, because it’s prime for abuse. Because it’s not clearly defined.”

For starters, Durkin said, contumacy—meaning willful or stubborn disobedience of authority, or even rebelliousness—is an “archaic” term. Assessing faculty members’ speech effectiveness is also problematic in that it seems to butt up against academic freedom and the First Amendment, raising a slew of protected speech issues, he continued.

Neal Hutchens, a professor of higher education at Ole Miss, agreed that the policy changes pose serious concerns with respect to the First Amendment. They also “really do potentially weaken the protections of tenure,” he said—even while “cherry-picking” AAUP guidelines on faculty rights.

The University System of Georgia last year approved policy changes that make it possible to fire a tenured professor as part of the posttenure-review process without faculty input. Florida legislators this year adopted a posttenure-review measure. Faculty advocates say both of these changes seriously alter the definition of tenure, especially in today’s hyperpoliticized climate (the AAUP says the changes in Georgia, in particular, “eviscerated” tenure). But Hutchens said that Mississippi’s new changes “go even farther than what we saw” elsewhere, in terms of limiting faculty speech.

The Foundation for Individual Rights in Education and PEN America last week wrote a letter to the Mississippi board, calling on it to “remove these censorious provisions and ensure that faculty will not face collegiality requirements or extramural speech restrictions when evaluated for tenure by university presidents.”

In addition to questioning the constitutionality of board’s policy changes, FIRE and PEN wrote that “Collegiality policies and extramural speech restrictions such as those at issue here are virtually certain to become a tool for sanitizing campuses of viewpoints with which university presidents disagree. And others in the campus community may seek to leverage them to bring undue pressure on these leaders to deny tenure to faculty with controversial viewpoints. This result is untenable for Mississippi’s public universities.”

Changes in Context

Given the lack of transparency with which these changes were adopted, it’s unclear just what inspired them.

Blanton, the board spokesperson, said that trustees approved the revisions to tenure “to align the policy with requirements common at universities nationally and existing language in tenured and tenure-track contracts” and other state laws. The changes “also place approval on the campus with the institutional executive officer, who has greater knowledge of the faculty member being considered for tenure than the board,” she said.

Clearly, the changes tie into national antitenure sentiments of the kind that led to the changes in Georgia and Florida, and the threatened elimination of tenure altogether in Texas. Yet the details of the Mississippi shift suggest that state-specific factors influenced them, as well. In one case, Ole Miss settled last year for an undisclosed amount with a former assistant professor of history who said he was fired from his job for political reasons. The professor, Garrett Felber, was technically terminated for failing to communicate sufficiently with his department chair while he was on research leave at Harvard University, but Felber said the dispute about communication was part of a larger issue—namely, he’d previously criticized his chair on social media for allegedly rejecting a $42,000 grant to study mass incarceration and immigrant detention because it was too political.

Ole Miss denied that there was anything retaliatory about Felber’s termination, but under the new tenure guidelines, Ole Miss would presumably have been able to assess his “effectiveness, accuracy and integrity in communications”; his “collegiality”; and his “absence of malfeasance, inefficiency and contumacious conduct” when he went up for tenure.

Perhaps even more than Felber, Mississippi’s policy revisions recall Ole Miss sociologist J. T. Thomas, for whom the board narrowly approved tenure in 2019, after he endorsed the idea of bothering lawmakers in public. “Don’t just interrupt a Senator’s meal, y’all. Put your whole damn fingers in their salads,” Thomas tweeted in 2018, after Texas Republican senator Ted Cruz was interrupted at a restaurant by opponents of then nominee Brett Kavanaugh’s appointment to the U.S. Supreme Court.

Thomas has since been targeted by Shad White, Mississippi’s Republican auditor, for participating in 2020’s Scholar Strike for racial justice.

Thomas said last week that Mississippi’s board members “seem like they get their inspiration from the governor and from certain politicians across the state. And there are any number of politicians over the last several years who have been talking about the problems of, you know, faculty who are too woke.”

While Thomas didn’t seem too surprised at the board’s direction, he said he did fault any university president who was aware of the board’s plan but who “failed to notify faculty about these changes and seek faculty input. They failed in their responsibilities.”

On collegiality, Thomas (who is white) said this: “What I’ve been thinking about and keep coming back to is the way that that it gets wielded as a billy club, particularly against faculty who are already vulnerable. I’m thinking about women and faculty of color who are often already seen or perceived as standoffish, or less than collegial, in part because they’re dealing with so many issues of microaggressions and discriminatory practices on campus already. And then I’m also thinking about how vague and ambiguous that term is. What does it mean to be collegial? Does that mean that if the university makes a decision that I disagree with, and I voice my disagreement, am I not being collegial?”

Thomas said he also wondered how these changes will affect faculty recruitment and retention in Mississippi.

“If you were talking to Ph.D.s who were on the job market and asked them, ‘Would you want to go to an institution or a set of institutions in which people are going to review what you say as part of your tenure and promotion?’ I’m willing to bet the majority of them say, ‘You know, what, I’d rather not.’” All this affects the “quality of what we do in the classroom and affects the quality of our research that we produce,” he added. “And that that affects the state.”

Durkin, head of the state’s faculty senates group, said he and colleagues are now strategizing about next moves: “We try to be to be very deliberate about what we do.”

Wilkin, Ole Miss’s provost, said, “I recognize and understand the concerns that faculty have about these changes. Changes to tenure or promotion processes always cause concern, as these are important aspects of our academic culture and enable us to pursue our mission.”