By Beaman Floyd, TACT Legislative Director
This summer in Texas is hot. Really hot. As of this writing, the heat will stay with us well into the calendar fall. Yet, in higher education, we have seen signs of a dangerous chill. This ideological cold front is in response to SB 16, SB 17, and SB 18, three major higher education bills that dominated much of the policy conversation during the 88th Legislative Session. The bills were sweeping, controversial, complicated, and dynamic. They were amended and “substituted” through the legislative process, and suffered varied fates.
Since the legislative session, TACT has received many questions about how these bills will affect faculty. Faculty members have expressed great concern about the general scholastic environment in Texas, exacerbated by issues in the media related to faculty and Texas A&M. Many of the questions are clear expressions of the “chilling effect” SB 16, SB 17, and SB 18, rather than their actual impact on faculty and institutions. Following is a brief set of examples of what the bills do and, just as important, what they do not do. We strongly urge faculty to read the bills in full, discuss with their peers and administrations, and participate with TACT for a complete understanding of their impact on institutional policy. We hope the following observations help initiate those activities.
SB 16, related to critical race theory, did not pass. Therefore, there is no change to existing law, and no legal reason for faculty to change any activities related to CRT.
SB 17 will have a profound impact on administrative Diversity Equity and Inclusion (DEI) programs when it takes effect on January 1, 2024. The bill explicitly forbids DEI offices and officials, functions related to DEI, mandatory training related to DEI, or hiring practices that require DEI statements. The bill does include important exemptions in cases where federal law might require DEI-related programs. The combination of sweeping prohibitions and uncertain definitions certainly creates a complicated situation for DEI professionals and institutions as they work to comply with the law.
However, SB 17 has clear language stating that the bill does not apply to academic course instruction, research, creative work, dissemination of such work, recognized student organizations, guest speakers, performers, data collection, or student recruitment or admissions. Faculty are not required by this bill to alter their research, syllabi or instruction by this bill. Any pressure to do so with SB 17 as a reason is simply not justified.
Senate Bill 18 of the 88th Regular Session created new law related to tenure and the termination of tenured faculty. Public institutions of higher education in Texas are currently reviewing their existing policies for compliance and will be amending those policies in the coming year.
SB 18 is an interesting, complicated bill. Though it creates a fair amount of new state law related to dismissal of tenured professors, much of the language related to cause may be found in existing tenure policies already at Texas institutions. Further, the section of the bill related to summary dismissal is permissive, stating that institutions “may” adopt summary dismissal policies, and then providing requirements for such policies. The bill does not prohibit conventional dismissal policies in addition to summary dismissal policies. In other words, the summary policy is optional, or may be adopted in tandem with conventional policies.
Many existing tenure policies include summary dismissal provisions in certain circumstances, including “gross immorality” (generally describing serious sexual offenses) and felony convictions. Interestingly, most current summary dismissal policies do not have the level of due process provided in SB 18. Thus, SB 18’s summary dismissal provision could actually result in an improvement of current institutional policies, provided that the summary dismissal provision is not viewed as a replacement for conventional dismissal provisions.
TACT has concerns about the vagueness of certain terms in SB 18, including “moral turpitude” and “unprofessional conduct.” Moral turpitude has explicit definitions in other parts of Texas administrative rules and is a well-litigated term with precedents for defense. Of more concern is the term “unprofessional conduct” as cause. TACT members should participate with their institutions in the adoption of changes to tenure policies to guard against overreach, over-change, or ambiguous language being applied to the required new terms.
Here is the bottom line- the will of the legislature is expressed in what the legislature passes into law. Faculty and institutions should not be making policies on the basis of guesses about what individual officials might want. Rather, they should be making the very best policy decisions possible for higher education in Texas while complying with the laws actually passed by the Texas Legislature.
TACT members should stay up to date with state developments (if you are reading this article, you are likely already doing so), participate in their institutional response to these bills, encourage understanding of what the bills actually do, and continue to recruit their peers to join our association to extend and improve our effectiveness with our institutions and the state legislature.
If we do so, we just might be able to beat the Texas chill.