North Dakota Senate passes guidelines on academic tenure in surprise bill reconsideration

BISMARCK — The North Dakota Senate voted on Wednesday to enshrine guidelines for academic tenure in century code in a surprise reconsideration of a failed bill.

Academic tenure gives professors a permanent position and protects them from being dismissed or fired without cause. The practice is intended to guarantee academic freedom because it protects professors from being let go for the type of research they are conducting or the papers they publish.

House Bill 1437

requires institutions of higher education to establish a tenure policy. Under the guidelines laid out in the bill, the institution’s president must implement a process for annual evaluations of nontenure, tenure-track and tenured faculty. They must also develop a procedure to evaluate post-tenure faculty at least once every five years.

The bill also states that the policy must define the outcome of an unsatisfactory review of post-tenured faculty, which may include removal from their position.

HB 1437 previously passed the House in a 84-5 vote. It failed on the Senate floor Tuesday in a 26-20 vote. However, one senator, Sen. Brad Bekkedahl, R-Williston, was absent for Tuesday’s vote. When he was present Wednesday, he made a motion to reconsider the bill. Between Tuesday and Wednesday, enough senators changed their mind on the bill to pass it in a 28-19 vote.

The bill now goes back to the House for a vote of concurrence before it can go to the governor for a signature or veto.

Lawmakers said they were surprised the bill was brought back for reconsideration and the chamber had to take a small recess to prepare because the senate staff had not been informed that a reconsideration would be happening.

Multiple senators who changed their vote for the reconsideration said that they were on the fence about the bill but changed their mind after doing more research between days.

The bill received opposition testimony from representatives of the Council of College Faculties, the North Dakota University System, North Dakota State University, the University of North Dakota and Bismarck State College.

Many of the institutions of higher education took umbrage with the bill specifying how to structure a committee to evaluate post-tenure faculty. The bill mandates that each committee include the faculty member’s administrative supervisor, at least one ranking administrator, and tenured faculty making up no less than one-third and no more than one-half of the committee.

“HB 1437 represents an overreach into the governance of higher education in North Dakota, which is constitutionally vested in the State Board of Higher Education,” President of the Council of College Faculties Rachelle Hunt said in written testimony.

Sen. Jonathan Sickler, R-Grand Forks, said the Legislature nixed a similar bill on academic tenure during the 2023 legislative session due to concerns over its constitutionality. He said that after the bill was defeated, the State Board of Higher Education (SBHE) took the concerns raised by the Legislature and spent over a year reviewing tenure practices at institutions of higher education in North Dakota.

He said that the SBHE’s Ad Hoc Committee on tenure had adopted most of the policies called for in HB 1437 since the bill’s introduction in January. He argued that the bill would institute a less-robust review process than what is currently being done by most institutions and expressed concern that the bill does not include any avenue for faculty to appeal the results of an evaluation.

“We need higher ed to be flexible,” Sickler said on the floor Tuesday. “By putting this in code, my concern is that we are locking the board into practice that will not work for it. We’re also putting a single process over a university system that has two-year campuses, polytechnic campuses, four-year institutions and research institutions where tenure policies may need to be different.”

SBHE member Kevin Black submitted written testimony in favor of the bill. He said that the amended version of the bill eliminates tenure as a “right” to continuous employment, clarifies post-tenure review, increases transparency and accountability, and is a step toward fixing the employee-employer relationship at institutions of higher education in North Dakota.

“We should not eliminate tenure, and I’m grateful for this bill’s amended approach,” Black said. “Working together, we can put the necessary guardrails around tenure policies that both drive accountability and reward our highest-achieving faculty members.”

Sen. Chuck Walen, R-New Town, who changed his vote between Tuesday and Wednesday, said he originally voted against the bill because he agrees with colleges taking care of issues such as tenure themselves. However, he added “after reading it, I’m going, this isn’t really hurting the colleges. It is just saying these are the steps to follow. And I thought that’s reasonable, so that was the reason for my (vote) change.”

Sen. Judy Lee, R-West Fargo, said that there had been significant friction between the university system and the executive branch decades ago, which established the independence of the SBHE.

“(Former) Gov. Langer was looking to fire faculty members at the research university in Fargo — and he was quite intrusive into that process — because he didn’t like some of the things he thought they were teaching,” Lee said. “The students rose up and they were successful in making sure that there would be a legal barrier between the Board of Higher Education and the executive branch in that case, but we are part of the legislative group that still shouldn’t be treading on those toes.”