BISMARCK — The future of North Dakota's proposed "Tenure with Responsibilities Act," HB 1446, remains uncertain after the all-Republican Senate Education Committee hearing on the matter was adjourned without action. Chairman Jay Elkin (R-Taylor) announced that the committee would not be acting on the bill until at least next week.
The legislation, authored by Rep. Mike Lefor (R-Dickinson), aims to add responsibilities for tenured professors and allow easier termination by university presidents. Lefor, maintains that HB 1446 is necessary to address growing concerns about the performance of tenured professors and the growing taxpayer costs.
“The higher education capital projects approved by legislature since 2013 until the end of this biennium... The total amount of general funds that were approved amounts to $311,139,742. This does not include those dollars in the other funds category,” Lefor said. “If you look at appropriations for higher education and compare it to our higher education enrollment, the enrollment has not really grown since 2013, but our funding certainly has…other states have enacted policy to provide for similar reviews, why not North Dakota?”
The bill has faced opposition from multiple sources, including faculty senates, students, education organizations, and on Monday, by former and current university chancellors in Dr. Larry A. Isaak and Dr. Mark Hagerott, respectively.
Despite overwhelming opposition the bill easily passed the House Government and Veterans Affairs committee, 8 to 3, and the full body of the House with 66 yeas, 27 nays, and 1 not voting, before being sent to the Senate on Feb. 21.
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Although changes were made to address public concerns, ongoing discussions on the future of academic freedom and job security for tenured professors continues to be a contentious issue across the state, as well as generating national media attention and public commentary on the issue. The modified version of the bill included changes from Lefor, and additional modifications from the committee, to address concerns raised by opponents that include the potential impacts the bill would have on academic freedoms, stability and security of tenured positions — including the safeguarding of tenured whistleblowers.
Among the changes, the committee removed portions mandating faculty generate more tuition or grant revenue than the combined costs of employment, as well as portions of the original bill that outlined that the compensation of tenured faculty members must reflect their administrative responsibilities.
The amendments also included the removal of a section that prevented faculty members from filing appeals or reviews, explicitly providing appeals rights directly to the chancellor.
Rounding out the amendments were portions of the bill that mandated recruitment obligations of tenured faculty, as well as some of the most controversial elements of the bill which forbade tenured professors to use social media or third-party internet platforms to disparage the institution or campus personnel.
The North Dakota Senate called for a legislative management report and an emergency declaration of HB 1446, before referring it to the Education Committee after its first reading.
Adding their names to a long list of opposing voices, Isaak and Hagerott both testified against the bill on Monday.
In Isaak’s video-conference testimony, acting in his personal capacity, he highlighted that the State Board of Higher Education (SBHE) has the constitutional governance mandate over such matters and took issue with the proposed legislation’s attempt to undermine the SBHE’s authority.
In his testimony Isaak said that HB 1446 threatened the accreditation of institutions and explained that the 1938 initiated measure that amended the state constitution created the board of higher education to protect state colleges and universities from political interference.
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“Various legislation being considered by all of you will considerably reshape the governance and the administration of the university system,” Issak said. “Today I am asking you to recommend a ‘Do Not Pass’ on HB1446, and ask you to be keenly aware of the board of higher education’s constitutional governance mandate, and the impact of this bill on its employees, students…and citizens.”
Rejecting the issues embodied in the bill, Isaak said that the legislature does not have the authority to legislate employment issues, such as hirings, firings, evaluations or terms of employment of institutional personne — adding that the SBHE has the full authority over the institutions under its control and that the new missions for DSU and BSC should be approved by the SBHE.
Echoing Isaak’s sentiments, Hagerott appeared in person to testify in opposition of the bill and instead proposed conducting a joint-study with the Legislative Interim Higher Education Committee in an effort to thoroughly review and offer recommendations related to a post-tenure review process as an alternative solution.
“We want to thank Representative Lefor for his very thoughtful, professional engagement of this issue because this is being engaged in many places in the country in a very negative way, disparaging of faculty, disparaging of presidents…and he has not done that so we want to thank him for that,” Hagerott said. “The opposition is based on constitutionality and the issues that have been assigned to the state board..”
Hagerott acknowledged the concerns raised by Lefor and noted the need for continuous improvement in the tenure review process, but also highlighted the importance of maintaining the constitutional authority of the SBHE in managing its institutions. He called on the Senate Education Committee to avoid provisions that would limit academic freedom.
The Faculty Senates for the two institutions the bill expressly targets, Dickinson State University and Bismarck State College, both faculty senate's submitted testimony in opposition to the bill, citing a litany of concerns the bill would create if passed. Dr. Steven Easton of Dickinson State University publicly supported the bill and provided drafts of the bill, but has not provided any additional on-record comments, in support or against, following the SBHE’s public opposition. He remains on the legislative record as one of the two supporting voices.
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