Can a professor speak out against one of the ingrained beliefs of the higher education system without facing retaliation?
That is the question in a fascinating case at Texas Tech University (TTU). A veteran professor of business, James Wetherbe, is a critic of the tenure system. He has often spoken out against tenure on the grounds that it causes faculty members to coast, not doing their best. He wrote here, for example, “Tenure makes it far too easy to be lazy and complacent. Real entrepreneurs can’t afford to be either. “
Wetherbe doesn’t just talk the talk; he also walks the walk. He has declined tenure throughout his academic career, first at the University of Minnesota and now at Texas Tech. Instead, he negotiates contracts year by year with the school.
In 2012, he took his current position at TTU, with the agreement that he would hold a faculty chair, but without tenure. That seemingly harmless deal struck a raw nerve with the provost, Bob Smith. As Wetherbe explains in this Huffington Post piece, when Smith learned about his no-tenure contract, he called it “illegal” and said, “Tenure is not anything we want to lose, particularly in the political times we are in now.”
Exactly how one professor’s decision to decline tenure would endanger the university is hard to see. Nevertheless, Wetherbe had gotten on the administration’s bad side and he would feel the sting over the coming years. Among other retaliatory measures he points to in his suit, Texas Tech demoted him to “professor of the practice,” denied him access to data pertaining to a scholarship fund, removed him from various leadership positions, and took an M.B.A. course on communication skills away from him.
Not content to take that treatment, Wetherbe sued in both federal and state courts. Initially, he lost in both venues, with the lower courts ruling that he had failed to state a claim upon which legal redress could be given. Both courts accepted TTU’s argument that the professor’s First Amendment rights extended only to “matters of public interest.” Since, his idiosyncratic views about tenure were not a matter of public interest, the university was free to deal with Wetherbe however it saw fit.
Wetherbe appealed both of those dismissals, with success.
Last year, the Fifth Circuit reversed the federal district court’s dismissal. The court’s opinion stated, “Wetherbe’s personal stake in and experience with tenure do not necessarily render his thoughts less important to the public. In fact, Wetherbe’s position as a professor who has rejected tenure could make his thoughts on tenure of greater interest to the public, given his experience and vantage point.”
On March 6, Wetherbe also got some good news on his other case, when the Texas Seventh District Court of Appeals reversed the lower court’s dismissal. Justice James T. Campbell, writing the court’s opinion, stated that Wetherbe’s criticism of tenure added to the public debate over the advisability of universities granting it and that his speech was valuable in the public square.
Wetherbe’s attorney, Fernando Busto, is quoted here on the ruling, “We are grateful that the court of appeals has cleared this case to go to trial and we look forward to receiving a redress for these damages as soon as possible.”
This ruling in favor of Professor Wetherbe means that his case will go to trial and my guess is that most jurors would take a dim view of a big university retaliating against a professor just because he dares to say tenure has bad consequences. Texas Tech would be wise to settle and make both cases go away.