Thought Leadership

Tenure in Texas: Analyzing the Impact of Senate Bill 18 on Community Colleges

Faculty tenure was a hot-button topic during the 2023 legislative session. But what started out as a controversial proposal to ban tenure at all institutions of higher education eventually evolved into a tenure-affirming bill that standardizes the definition of tenure, imposes a framework for evaluation and dismissal, and requires all institutions, including community colleges, to adopt tenure-related policies by August 31, 2023.

Although a majority of Texas community colleges are not tenure-granting institutions – most phased it out over the last 35 years, opting instead to offer multi-year rolling contracts – tenure systems still exist at some Texas community colleges. Under Senate Bill 18, which the governor signed on June 14, all Texas community colleges must adopt a board policy addressing tenure and file the policy with the Coordinating Board of Higher Education, even if the policy simply reaffirms that the institution does not grant tenure.

Here are the key takeaways regarding SB 18 and tenure at community colleges:

• Faculty tenure is permitted but not required. While the original version of  SB 18 would have banned institutions from granting tenure after September 2023, Senate Bill 18 gives local boards the authority and discretion to decide whether to confer tenure or whether to stick with term contracts.
• “Tenure” now has an official, standard definition. SB 18 defines “tenure” as “the entitlement of a faculty member of an institution of higher education to continue in the faculty member’s academic position unless dismissed by the institution for good cause,” in accordance with the institution’s policies and procedures.
• “Tenure,” when granted, does not extend to extra duties or stipends. Under SB 18, although tenure protects the faculty member’s continued employment, it “may not be construed to create a property interest in any attribute” beyond continuing employment.
• All community colleges must adopt a tenure policy—even if just to disavow tenure. The board-adopted tenure policies and procedures must address the granting of tenure, provide a mechanism for the dismissal of tenured faculty with due process, and establish a periodic performance evaluation process for all tenured faculty.
• Boards must obtain faculty input before adopting tenure policies and procedures. There is a short window to satisfy this requirement prior to September 1.
• Only the community college’s board may grant tenure, on the institution’s CEO’s recommendation.
• The law establishes a performance evaluation process. Community colleges must conduct a comprehensive performance evaluation for each tenured instructor at least once every six years, but no more than once every year. Under the new law, tenure may be revoked if, during the evaluation process, the institution finds incompetency, neglect of the faculty member’s duties, or other good cause for tenure revocation. Institutions must place any tenured faculty who receive an unsatisfactory rating on any portion of their comprehensive evaluation on a short-term development plan that includes performance benchmarks for returning to satisfactory performance.
• The law specifies dismissal standards. SB 18 allows termination for good cause but also lists specific grounds that will constitute good cause. These include, for example, “professional incompetence,” failure to successfully complete any post-tenure review professional development program, “conduct involving moral turpitude that adversely affects the institution or the faculty member’s performance of their duties,” violation of a law or institutional policy that “substantially relates to the performance of the faculty member’s duties,” unprofessional conduct, falsification of academic credentials, and a financial exigency. Before terminating a tenured faculty member, the institution must provide due process. Although SB 18 does not impose particular procedures, constitutional due process principles will apply. In the Fifth Circuit, a tenured professor facing termination is entitled to (1) be advised of the cause for the termination in sufficient detail so as to enable the faculty member to show any error that may exist; (2) be advised of the names and the nature of the testimony of the witnesses against the faculty member; (3) a meaningful opportunity to be heard within a reasonable time; and (4) a hearing before a tribunal that possesses some academic expertise and an apparent impartiality toward the charges. See Walsh v. Hodge, 975 F.3d 475 (5th Cir. 2020). When witness credibility is critical, the faculty member also may be entitled to confront his or her accuser. See id.
• The law recognizes the concept of the “summary dismissal.” SB 18 allows—but does not require—institutions to create a mechanism for “summary dismissal” of tenured faculty based on “serious misconduct,” which the institution must define in policy. The term “summary dismissal” is somewhat misleading because it suggests that a professor can be terminated on the spot, which is simply not the case under federal due process principles. Under the bill, a “summary dismissal” will require written notice of allegations (including an explanation of the evidence), a hearing before a “designated administrator” who renders a written decision, and an opportunity for an undefined “post-dismissal appeal.” Before adopting a “summary dismissal” procedure pursuant to SB18, boards should consult legal counsel to ensure that their procedures satisfy federal due process requirements.

If you have any questions about SB 18, the current legal landscape governing tenure, or other faculty employment issues, please contact Lisa A. Brown, Oleg Nudelman, Melissa Mihalick, or any member of Thompson & Horton’s community college team.