Kansas House bill strives to strip property interest from definition of university, college tenure

Yahoo

10-02-2025

Emporia State University President Ken Hush, center in sweater, remains a defendant in a federal lawsuit seeking to reverse the firing of 11 tenured faculty at ESU in 2022. On Tuesday, a Kansas House committee will consider a bill altering state law to declare awarding university tenure didn't mean a professor was receiving a property right associated with their employment. The bill was drafted by Steven Lovett, an ESU attorney and a defendant in the lawsuit with Hush. (Tim Carpenter/Kansas Reflector)
TOPEKA — Legislation headed to a Kansas House committee Tuesday would redefine tenure at public higher education institutions to strike the concept that faculty members earning this academic status held a property interest tied to their employment.
The bill was introduced by Salina Rep. Steven Howe, who chairs the House's higher education budget committee, at the behest of Steven Lovett, general counsel at Emporia State University. ESU is embroiled in state and federal court battles tied to the administration's decision in 2022 to fire 30 tenured or tenure-track professors.
Lovett's role in drafting or advancing the House bill could be a conflict of interest because passage had the potential to influence his prospects of success as a defendant in the federal case.
On Monday, an ESU spokeswoman Gwen Larson said it was a 'surprise to the university' Lovett had the bill introduced in the House. Larson said Lovett took that step as a 'private citizen' rather than in his capacity as a university attorney. Larson asserted all university employees had a 'constitutional right' — she didn't offer a citation from the Kansas Constitution — to present a bill to the Legislature.
'A bill submitted by Steven Lovett, which stipulates that tenure shall not be defined as an entitlement or property right, was done in his capacity as a private citizen,' Larson said. 'While submission of this bill comes as a surprise to the university, the university respects Mr. Lovett's constitutional rights and freedom of expression.'
Eleven dismissed ESU faculty filed a lawsuit in U.S. District Court challenging their firings on constitutional grounds. In addition to defending against that suit, Emporia State attorneys turned to Lyon County District Court in an attempt to prevail in the labor dispute.
Phillip Gragson, a Topeka attorney representing ESU tenured professors targeted for dismissal, said his clients were aware of the House bill.
'If it passes,' Gragson said, 'it's a death knell to the Kansas higher education system.'
The hearing on House Bill 2348 has been scheduled for 3:30 p.m. Tuesday in the House Judiciary Committee. Howe and the Kansas Board of Regents didn't respond to requests Monday for comment.
Emporia State President Ken Hush summarized the legal drama to members of Howe's higher education committee in January. Hush pointed to a federal judge's order in December that concluded faculty tenure was associated with a property right.
'That obviously means an entitlement in a job forever or until this is settled in some form,' Hush said. 'As a state agency, we're working with the attorney general on this. The other option is to correct that via legislation.'
Academic tenure in the United States is often viewed as a contractual right granted college or university educators who demonstrated a commitment over the years to teaching, research and service. Tenure evolved as a mechanism to encourage intellectual autonomy among scholars. Absence of some form of job security would likely shift the focus of researchers and teachers to noncontroversial, insubstantial topics.
Some critics of tenure have argued the system made it difficult to hold faculty accountable for on-the-job failures.
In 2022, the Kansas Board of Regents clouded the issue with a policy making it easier to terminate tenured faculty at state universities based on financial problems or declining enrollment. The policy was an outgrowth of uncertainties created by the COVID-19 pandemic.
The policy didn't eliminate standard justifications for possibly firing a tenured faculty member, such as personal misconduct, criminal offenses or violation of university policy. Only ESU implemented the streamlined policy to dispatch tenured professors.
Under the new House bill, 'an award of tenure may confer certain benefits, processes or preferences, but tenure shall be discretionary and conditional and shall not — nor shall it be interpreted to — create any entitlement, right or property interest in a faculty member's current, ongoing or future employment by an institution.'
'Surely the law can't be that a tenured professor can never be let go when a university is downsizing,' said Rep. Paul Waggoner, R-Hutchinson.
Howe, who introduced the tenure reform bill, also made a recent motion in his House committee to add $2.2 million to the ESU budget for legal expenses in the faculty firing case. He said it would be unfair if ESU had to pay court-related expenditures through internal reallocation.
'This motion is basically to support Emporia State University in their effort to create efficiencies,' Howe said.
Ron Barrett-Gonzalez, co-chair of the Kansas conference of the American Association of University Professors, said the House bill ought to be relabeled an attempt to seize property and due process rights from educators while inflicting general harm on the people of Kansas.
He said the legislation would remove employment protections held by tenured faculty across Kansas in addition of forbidding those rights from being conferred in the future.
'We see this bill as being fundamentally flawed,' said Barrett-Gonzalez, a professor of engineering at University of Kansas. 'This bill, if passed, will effectively take the property rights of thousands of faculty members … without compensation or due process.'
The House bill could jeopardize accreditation among engineering, medical and law schools, damage national reputations of targeted colleges and universities, make it more difficult to recruit or retain quality faculty and invite a collapse in student enrollment, Barrett-Gonzalez said.
Language in the bill indicated it would directly apply to the six public universities operated by the state Board of Regents. It could involve the state's 19 community colleges, six technical colleges and Washburn University in Topeka, said Heather Morgan, executive director of the Kansas Community College Association. She said the association didn't have a position on the bill and assumed other state laws would exempt community and technical colleges from the tenure reform.
In 2014, the Legislature and Gov. Sam Brownback approved legislation that ended tenure for K-12 public school teachers. The Kansas Supreme Court subsequently issued a decision that K-12 tenure could be deleted by state lawmakers.
Rep. Sydney Carlin, D-Manhattan, Sen. Marci Francisco, D-Lawrence, and Rep. Barbara Ballard, D-Lawrence, serve communities that host either Kansas State University or KU. All three said they were disturbed by ramifications of the bill introduced by Howe and the ESU attorney.
'It made my heart sick,' Carlin said. 'This is just another attack on educators. Tenure is really an investment in the university and the professor.'
Francisco, with a Senate district covering the KU campus in Lawrence, echoed that sentiment. She said the legislation sought to substantively and negatively alter the employer-employee relationship between higher education institutions and faculty.
'It allows people to really do harm to you without recourse,' Ballard said. 'No one gives you tenure. You earn it. Everybody, not just faculty, deserve due process.'