Lawmakers Consider Limiting Tenure

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By Kate McGee, The Texas Tribune

April 16, 2021

The legislation, filed by Republican Houston Sen. Paul Bettencourt, was inspired by a University of Texas at Austin professor who filed libel lawsuits against multiple students who accused him of promoting pedophilia with his research and called for his removal. One of the students sued by the teacher is the daughter of Allen Blakemore, a prominent conservative political consultant who has worked for Bettencourt.

UT-Austin classics professor Thomas Hubbard, who is tenured, studies ancient pederasty, or the sexual relationship between a man and young boy, which multiple students raised concerns with in 2019. Hubbard taught a class called “Mythologies of Rape,” and published academic writing about the age at which boys can consent to sexual relations, including an article titled "Sexual Consent and the Adolescent Male, or What Can We Learn from the Greeks?"

At the time, former UT-Austin President Greg Fenves said he found the content “outrageous,” but he maintained that academic research, including the study of controversial or offensive ideas, is protected by the First Amendment.

Bettencourt said in a Senate Higher Education Committee hearing this week that he was shocked when Hubbard took a “dispute at a low level” and escalated it to the courts without trying to first resolve it within the university's grievance system.

“The professor has to be the adult in the room. While the students are probably over 18, they’re very young and inexperienced,” Bettencourt said. “Once they end up in a courtroom, that student is stuck in a civil litigation for probably two years or more.”

Hubbard said in an email he made multiple requests to the university to resolve the situation with students internally, but they were rejected.

“The University did appoint a special committee to examine my teaching record, and that committee reported that they found no evidence of my introducing irrelevant or inappropriate material into my teaching,” Hubbard wrote. “I agree that litigation should always be a last resort, but in this case, it was the only resort given the absence of cooperation from the University.”

In 2019, students protested at Hubbard’s house, banging on the door of his house and vandalizing his home. He has since relocated to California and works for UT-Austin remotely.

One of the students who Hubbard sued is Sarah Blakemore, the daughter of a prominent Republican political consultant. Allen Blakemore serves as Lt. Gov. Dan Patrick’s campaign strategist and spokesperson, and has done campaign work for Bettencourt and other Republican lawmakers.

According to the Austin American-Statesman, Sarah Blakemore signed up to take Hubbard’s class in 2019, but dropped it after she read his research. Court documents allege she passed around a flyer with false statements about his research and courses.

“I understand everyone has their own academic license, but I don’t think it’s appropriate for teachers at a public university to be promoting breaking the law,” Sarah Blakemore told the Statesman in 2019. She declined to comment to The Texas Tribune at the advice of her attorney.

In a statement, Allen Blakemore said he has spent tens of thousands of dollars defending his daughter against the lawsuit.

“To think that this could happen to anyone is what has gained the attention of the Texas Legislature,” he wrote. “Since the University of Texas has not even attempted to protect my daughter, I’m glad the Texas Legislature will.”

Bettencourt denied that he filed the bill as a favor to Blakemore, calling the question “hogwash.”

“This comes from the media reports and just the outrage over the fact that we’ve got any students, don't care who it is, [getting sued]” Bettencourt said. “Tenure grants protection of freedom of speech to the professor but none to the student and so it's not a level playing field.”

UT-Austin officials did not respond to questions regarding the lawsuit by The Tribune's deadline.

In Wednesday’s hearing, Sen. Brian Birdwell, R-Granbury, raised concerns about the bill limiting a person’s access to the courts based on their profession.

“I don't want to create a perverse incentive that student misconduct, whether it's libel or something more physical, that professors are placed in a position of having cause of action in front of court, but to receive that justice I may very well find myself vacating my tenure,” he said.

But Bettencourt said the bill would not automatically revoke tenure if a professor sues a student. While he noted that it’s rare for professors to sue students, he said the bill would offer universities the option and tell professors “if you take that step, there could be consequences.”

Sen. Brandon Creighton, R-Conroe, filed another bill that would shorten the tenure review period for faculty from every six years to every four years. It also broadens the reasons universities could revoke tenure, including sexual harassment, fiscal malfeasance, plagiarism, conduct involving moral turpitude and “other good causes.”

Both bills were left pending in committee.

Creighton argued the case involving UT-Austin, and others have raised questions about whether the tenure process in Texas is working as intended, linking the practice to concerns about stifled free speech on campus and the politicization of higher education.

“Tenure is an invaluable tool to recruit faculty and researchers in certain circumstances, but tenure also provides censorship and some examples of ‘cancel culture,’” Creighton said, raising concerns with professors advocating particular positions or curriculum in the classroom that may or may not be appropriate.

The Texas Faculty Association, which represents professors across the state, opposed both bills.

“A faculty member could face the revocation of tenure and the loss of their livelihood for exercising their right as citizens to seek protection under civil law in the same manner as any other citizen,” wrote Lisa Dawn-Fisher, a lobbyist for the association, in written testimony.

Tenure is a well-established practice in higher education that protects a professor's academic freedom and ability to research controversial topics without fear of termination. According to experts, it is almost unheard of for a faculty member to lose tenure and remain employed. Typically, professors are dismissed for cause, including incompetence or some other misconduct.

The practice has been under attack for decades by conservative lawmakers who have complained left-leaning professors are indoctrinating students and silencing conservative students' free speech under the protection of tenure.

Six years ago, Wisconsin made national news when former Republican Gov. Scott Walker broadened the reasons a faculty member could be laid off at public universities. This year, some Iowa lawmakers tried to ban tenure at public universities, though the bill failed to make it out of committee.

“This is legislative micromanagement that will have little impact on improving faculty work, teaching, research, service, the student experience,” said Michael Harris, a professor at Southern Methodist University who studies tenure policies. “This is more about scoring political points than anything having to do with what's actually happening in the classroom.”

In the bill analysis, both lawmakers argue tenure also allows professors to become unproductive and prevents new faculty from getting hired, but experts say there is little data to back up either of those arguments.

“It’s a nice rhetorical Boogeyman,” Harris said. “But it does not bear out in the sense of reality, and certainly not enough to upend a system that protects faculty to make sure that we do get scientific discoveries and research that is free from political influence.”

He said his current research shows a trend that universities have increasingly raised the bar to award tenure, urging faculty to be more productive in the classroom and to perform more research before granting it.

The number of tenured faculty has also declined by 10% nationally since 2000, according to federal data. Just 45% of full-time faculty across the country had tenure in 2018-2019. Harris said that is due in part to states disinvesting in higher education and universities hiring more non-tenure track and part-time faculty, who are less expensive to pay.

Dawn-Fisher also said shortening the tenure review period will make Texas less competitive as high-ranking scholars will choose to work elsewhere. But in Wednesday’s hearing, Creighton said when these rare, but high-profile cases come up, they hurt the reputation of Texas’ public universities.

“We talk about free speech in public square, but there is a significant amount of damage when that contract protects that professor in ways that are granted through employment and through those protections that so many others in other respective fields of work are not protected,” he said. “Yet the public square and free speech provisions in those arguments are allowed to diminish that very brand, hurting so many as well as the institution itself.”

Creighton did not respond to a request for an interview.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/04/16/texas-tenure-ut-austin/.