What to Do After the Anti-Tenure Law Passes

Faculty governance leaders across Tennessee rallied against HB 2194: issuing resolutions, building coalitions across public institutions of higher education and delivering formal petitions to the state in defense of tenure. By the time the bill passed both chambers of the General Assembly and reached the governor, who signed it into law last Thursday, faculty leaders across the state had absorbed what the measure does: strips peer review from faculty misconduct proceedings, concentrates termination authority in a single administrator and deletes TCA § 49-8-303—the statutory section that houses Tennessee’s detailed hearing procedures for tenured faculty. These are real losses, and I do not intend to minimize them.

But after sitting down with a lawyer and working through the bill carefully, I found something unexpected—language that, read closely, may offer faculty governance leaders a meaningful path forward. Not a reversal of what passed. Something more modest and, perhaps, more durable: a legal and procedural architecture for preserving the core of what tenure is meant to protect.

I write from a specific vantage point: Faculty Senate president-elect at Pellissippi State Community College, one of Tennessee’s public community colleges governed by the Tennessee Board of Regents. TBR institutions are where this law will land first and hardest. But the architecture of the law—and the architecture of how to respond—is not unique to Tennessee.

I want to share that architecture here, because similar legislation is moving through statehouses across the country, and the question faculty senate leaders everywhere are asking—What do we do now?—deserves a more hopeful answer than most of us have been given.

Start With the Preamble

Sections 3 and 7 of HB 2194 open with declarations. These are not rhetorical flourishes. They are statutory declarations of intent—the kind of language courts use when interpreting ambiguous provisions and the kind that constrains how implementing policy must be written. Most notably, Section 3 includes the following language:

The same measure that reduces faculty due process protections also would codify, in statute, that tenure is a safeguard for academic freedom and that tenure decisions and disciplinary actions must remain categorically separate. That language binds governing boards when it comes to policy drafting. Any implementing policy that allows the stripped-down disciplinary process to affect academic speech, governance participation or protected expression would contradict the Legislature’s own stated purposes—and create legal exposure for the institution.

Consider What the Legislation Leaves Undefined

The law’s second significant feature is how much the text leaves undefined.

The operative provisions reference “cause,” “misconduct” and “professional standards” repeatedly—but never define any of them. The measure requires governing boards to adopt implementing policy immediately but says nothing about what those definitions must contain.

This is where the policy drafting process becomes the central arena. Definitions written broadly—broad enough to encompass academic speech, political expression or governance participation—would allow the stripped-down disciplinary process to reach almost anyone. Definitions written narrowly, grounded in a section of Tennessee code that HB 2194 would replace, would limit its effects to categories of conduct so severe that virtually no one would dispute they would warrant termination regardless of tenure: incompetence, dishonesty, willful failure to perform duties, felony conviction and outrageous conduct including sexual misconduct, physical violence or financial fraud.

The historic statutory language gives faculty advocates a basis for a concrete argument for what “cause” must mean. The corollary argument follows from the law’s deletion of TCA § 49-8-303, the section that contains the procedural detail of formal misconduct hearings against tenured faculty. The deletion creates a policy vacuum the regents are obligated to fill. A faculty senate’s position could be that the existing procedures must be carried forward as the default for everything outside the gross misconduct category. The legislation’s separation mandate and preamble together require that the replacement procedures be at least as protective as what existed before. The deletion created a drafting obligation—not permission to weaken protections.

Constitutional Protections

Beyond this, the Constitution adds protections the new law cannot touch.

Tenured faculty at public institutions have a property interest in continued employment. Before that interest is taken, due process is required. The Supreme Court held in Cleveland Board of Education v. Loudermill (1985) that constitutionally adequate process means specific notice of the charges, disclosure of the evidence relied upon and a meaningful opportunity to respond. HB 2194’s text reinforces this: It stipulates that implementing policies must “ensure due process for a faculty member” and “comply with applicable state and federal law.”

The First Amendment adds another layer. Under Pickering v. Board of Education (1968), public employees retain First Amendment rights to speak on matters of public concern. Political speech—public advocacy, criticism of policy, expression on matters of civic and institutional life—sits at the core of those protections. No definition of professional standards can lawfully reach such speech.

Circuit courts have further recognized a carve-out protecting academic speech and scholarship from the more restrictive speech protections for public employees called for in the 2006 Supreme Court case Garcetti v. Ceballos, understanding that faculty expression in the classroom and in scholarly work occupies a distinct constitutional space. And Section 1 of HB 2194 itself requires institutions to “preserve a campus climate that allows for the free expression of all viewpoints”—a statutory reinforcement sitting alongside the constitutional protections. A faculty member whose termination is motivated by viewpoint has both a constitutional claim and a statutory one under the legislation’s own language.

A Path Forward

All this does not make up for everything the law removes. The loss of pre-termination peer review in misconduct proceedings is real, and faculty at Tennessee’s public institutions will feel that loss. I do not think the legislation was wise and I have said so publicly—in meetings on record, in a Knoxville News Sentinel op-ed and in an interview on local news.

But what the architecture of HB 2194 offers is something different: a legally grounded basis for ensuring that the stripped-down disciplinary process remains genuinely limited—a last resort for conduct plainly incompatible with continued employment, not a mechanism for preventing protected speech or silencing governance participation. If the definitions hold, the damage is real but bounded. Academic freedom survives. Shared governance survives. The campus as a place of intellectual independence survives.

And that, I think, is worth working toward.

The broader lesson for faculty governance leaders watching similar legislation in other states is this: The fight does not end when a bill is signed. The fight moves to the policy drafting table. And the legislation’s own language—the stated purposes, the undefined terms, the constitutional compliance requirements—may provide more to work with than a first reading suggests.

Read the preamble, carefully. Ask what the Legislature said it was doing and hold the governing board to that standard.

The work ahead is patient, deliberate and grounded in the actual text of the law—for the long haul. That is exactly the kind of work faculty governance exists to do.