Texas Lt. Gov. Dan Patrick recently made headlines by proposing to revoke the tenure of any professors at public colleges or universities in Texas who teach critical race theory — and, even more stunningly, to abolish tenure for all new professors regardless of discipline.
“Go to a private school, let them raise their own funds to teach, but we’re not going to fund them,” Patrick said at a recent news conference announcing his plans. “I’m not going to pay for that nonsense.”
This freedom is important not only for the sake of the teacher or researcher, but for the sake of our society, writ large.
A subsequent statement went further, complaining that “tenured professors must not be able to hide behind the phrase ‘academic freedom,’ and then proceed to poison the minds of our next generation.”
I’m a tenured faculty member at a public university in Texas. Part of why I can write an op-ed criticizing the lieutenant governor of my state for not having the foggiest idea what he’s talking about is because I’m not risking my job by doing so. And, for the record, Patrick has no idea what he’s talking about.
The American Association of University Professors defines academic freedom, in principal part, as the “freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities.” This freedom is important not only for the sake of the teacher or researcher, but for the sake of our society, writ large.
As Chief Justice Earl Warren explained in a 1957 Supreme Court decision, “No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made.” That’s why “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” To quote Justice Robert Jackson’s opinion for the court in an earlier case, “We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.”
In other words, insofar as our society depends upon universities not only to train the next generation of leaders, but to continue to make new discoveries and inroads across the universe of academic disciplines, that dependence in turn requires independence on the part of the universities. Professors should not be told what they can and can’t research, what they can and can’t teach and what they can and can’t write.
Tenure, as a concept, exists primarily to protect academic freedom. A professor who is tenured after satisfactorily complying with the university’s standards for promotion (a process that, on average, takes roughly six years) is granted contractual, statutory and, in some cases, constitutional protection against being fired for any but the most compelling reasons. Instead of worrying about the political ramifications of their next necessary but unpopular research project, professors can challenge the establishment — whether in their department, their field, their country or beyond.
That’s not to say tenure is perfect; it’s far from it. The job security it creates can be (and has been) abused by bad actors.
That’s not to say tenure is perfect; it’s far from it. The job security it creates can be (and has been) abused by bad actors, from those who have sexually harassed their peers and students to those who have little incentive, especially later in their careers, to remain productive. It also creates (and perpetuates) well-documented inequalities among those aspiring to tenure, skewing the process toward those with more time or resources to publish. Indeed, tenure standards across the country are badly in need of reforms.
This means we need fairer ways of promoting job security among academics. We should not be abolishing job security altogether in a fit of ideological pique. Patrick may not like “critical race theory” (if he even knows what that is), but no one can seriously dispute that it is a serious, cross-disciplinary social and intellectual understanding supported by a meaningful amount of factual evidence. And that’s before we get to the even more damning point: that the actual number of courses at Texas colleges and universities in which critical race theory is taught at all, let alone as a central topic, is, I’d guess, far less than one-tenth of one percent of all courses taught. At most, it’s a topic that would come up in upper-level law school and education electives, and maybe a handful of other classes across a campus.
Part of this is surely because it’s election season. Texas holds its primary elections for statewide offices, including lieutenant governor, on Tuesday. So it’s possible — indeed, likely — that this was all just a publicity stunt, and abolishing tenure will be the last thing on the mind of the Texas Legislature when next it convenes (in 2023). But Patrick isn’t alone. In the fall, Georgia’s public university system adopted changes to its tenure system to make it easier to fire tenured professors without faculty input — a move similarly decried as an attack on academic freedom, albeit less of a frontal assault. The more common these attacks, the more likely they become more than just empty campaign promises. At his Feb. 18 press conference, Patrick argued that “professors are paid to help teach young men and women how to think critically. Not what to think.” On this point, at least, he’s right. But as someone who has been teaching graduate students for 17 years, I can say based on that experience it isn’t possible to instill critical thinking skills in students if we’re only allowed to teach certain topics, theories or historical narratives — and all at the risk of our continuing employment. This exact concern is what led the Supreme Court, in the middle of World War II, to strike down a West Virginia law mandating recitation of the Pledge of Allegiance in public schools. Jackson’s famous line in West Virginia State Board of Education v. Barnette was, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” But one page earlier, he struck a more ominous note: “Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.” Pointing to historical examples up to and including the ongoing wars against Nazi Germany, Japan and their totalitarian allies, Jackson concluded that “those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” Jackson’s words were prophetic and powerful. Imagine if we could be fired for teaching them.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
