Case Against Tenure

James Wetherbe, Richard Schulze Distinguished Professor at Texas Tech University’s Rawls College of Business, is the rare academic who doesn’t want tenure. He thinks so little of tenure, in fact, that he’s been waging a four-year legal battle against the notion that professors must assume it to advance their careers.

Wetherbe had little success in his first lawsuit alleging that he missed out on promotions and was otherwise retaliated against for his anti-tenure views; it was dismissed in 2014 on the grounds that the professor’s comments against tenure up until he lost out on a deanship and an honorary title weren’t substantive enough to support his claim of a First Amendment violation.

But a second lawsuit alleging continued retaliation for his speaking out against tenure may proceed to trial. The U.S. Court of Appeals for the Fifth Circuit has reinstated Wetherbe's new complaint against a dean at Texas Tech, reversing a lower court’s ruling that tenure is more of an individual working condition than a matter of public concern and therefore not protected speech. His case was bolstered by news articles about his first complaint and additional opinion pieces he’s written since 2012, including one in the Harvard Business Review.

“Media coverage noted in Wetherbe's complaint, as well as the fact that various media outlets published Wetherbe's articles, shows that Wetherbe's speech was made against the backdrop of an ongoing public conversation about tenure, which indicates that the public is actually concerned about tenure,” reads the unanimous decision by a three-judge appeals court panel.

“In fact,” it says, “Wetherbe’s position as a professor who has rejected tenure could make his thoughts on tenure of greater interest to the public given his unique experience and vantage point. … While defendants argue that Wetherbe's speech was made ‘in the course of performing his job,’ there is no reason to infer from the complaint that writing articles on tenure or speaking to the press are part of Wetherbe's job duties.”

Wetherbe believes that tenure is a failed policy because it, in his view, allows bad professors to keeping teaching. He prefers continuous, rolling contracts for faculty members instead, similar to those already in place on some campuses.

In an interview Tuesday, Wetherbe said that his case is significant because it seeks to establish tenure as a matter of public concern and -- crucially -- that academic freedom is protected by the First Amendment. Wetherbe believes free speech rights are a stronger safeguard for academic inquiry and expression than tenure.

“There are people who said, in the first case, ‘You’ve just proven you need tenure,’” he said. “But I say, hold on a second. Tenure just keeps you from getting fired.” It doesn’t necessarily prohibit institutions from making life difficult for professors they disagree with, he said -- which is what Wetherbe alleges continued to happen at Texas Tech even after he filed his first complaint.

The second lawsuit accuses a key defendant, the former business dean, of retaliating against Wetherbe -- essentially trying to get him to quit -- by assigning him first-year instead of graduate-level courses with little notice, upping his teaching load and returning part of a major grant for Wetherbe to Best Buy. The dean, Lance Nail, allegedly claimed a new entrepreneurial and innovation online journal project the grant was to fund wasn’t prestigious enough.

“Sorry I agreed to do this, here's your $100,00 back," said Wetherbe, recalling his embarrassment at having to return the money. 

Wetherbe’s attorney, Fernando Bustos, said that if Texas Tech challenges the decision, the case could go to the U.S. Supreme Court, with major implications for academe. The current high court precedent for speech and public employees, Garcetti v. Ceballos (2005), found that workers can’t claim private citizens’ First Amendment protections when commenting on their "official duties." But the decision left room for a possible exemption for academics, and Bustos said a case such as Wetherbe’s could fully explore it.

The U.S. Court of Appeals for the Ninth Circuit already weighed in on protected speech and official duties for faculty members in 2013, in Demers v. Austin. The case pertained to a former Washington State University communications professor, David Demers, who said he was retaliated against for criticizing in writing his college's faculty structure and administration. The court ultimately decided decided that Garcetti does not apply to professors’ official duties, and what must instead be used is a previously established legal balancing test between the interests of a public employee as a citizen and the interests of his or her employer. 

A spokesperson for Texas Tech said the university expects to file a motion for summary judgment, or a request that a judge rule on the case before any trial.

John K. Wilson, and independent scholar of academic freedom and co-editor of the American Association of University Professors’ “Academe” blog, praised the appeals court for finding in Wetherbe’s case that tenure issues are of public concern, “because clearly they are.” 

Yet Wilson said the First Amendment already protects academic freedom, and has for at least 50 years, since Keyishian v. Board of Regents of the University of the State of New York. In that case, the Supreme Court ruled that states can’t prohibit employees from being members of the Communist party; Harry Keyishian was a professor at what was then the University of Buffalo who faced dismissing for refusing to sign a statement saying he’d never been a Communist.

Hatred of tenure is already therefore a First Amendment right under academic freedom, Wilson said, “but so few professors have been dumb enough to oppose tenure that it's probably never come up in an academic freedom lawsuit before.”