The College Fix

His speech is protected as a ‘matter of public concern’

Jim Wetherbe has long crusaded against tenure for professors – even during his job interview for the deanship at Texas Tech University’s business school.

“I noticed early on in my career a number of faculty bragged about not being fired and started behaving that way,” the business professor told The College Fix in a phone interview. “It’s a minority of faculty who do that, but they make the majority look bad.”

A professor that can be fired without a long and cumbersome process might sound appealing to a university.

But in Wetherbe’s telling, Texas Tech didn’t like that he kept publicly saying that tenure was harmful to the academy and students.

It allegedly gave him worse working conditions, provoking Wetherbe to sue for First Amendment retaliation.

The 5th U.S. Circuit Court of Appeals agreed earlier this month, overruling a trial judge who had dismissed his suit against his former dean, Lance Nail, and current dean, Paul Goebel.

MORE: Prof ends weeklong hunger strike for tenure with tacos

“We are coming up on almost five years since litigation began,” Wetherbe’s lawyer Fernando Bustos told The Fix in a phone interview. “We have had numerous appeals back and forth, but we have yet to have a trial.”

The appeals court ruling has even pleased an official with a group that strongly supports the continued use of tenure.

John K. Wilson, co-editor of the American Association of University Professors’ Academe blog, told Inside Higher Ed he was happy the 5th Circuit had found tenure to be a matter of public concern.

Students get ‘bad learning experiences’ with tenured professors

As an idea, tenure was invented in the 1700s for professors at religious universities to protect academic freedom, but has turned into something else entirely, according to Wetherbe’s 2013 Harvard Business Review paper.

Instead of having tenure, Wetherbe advocates that professors get three-year rolling contracts in which their institutions can buy them out after three years.

He told The Fix that guaranteeing employment to a 30-something academic for the next few decades is not in the best interest of students, parents or professors.

Students should not have to deal with bad professors, Wetherbe said: “I find it unacceptable when one of the most important things we do is provide futures for our youth by giving them an education, yet all of them are experiencing bad learning experiences.”

MORE: ‘Talent for teaching’ is irrelevant in tenure decisions

He’s not just speaking in the abstract: Wetherbe achieved tenure at the University of Houston and University of Minnesota and was offered it by the University of Memphis and Texas Tech.

A big difference exists between someone who can’t get tenure and someone who has qualified for it four times, he said.

Some studies support the claim that adjunct professors are better for students. A study done by the National Bureau of Economic Research concluded that new students at Northwestern University learned more from adjunct professors than tenure-track professors.

A 2011 study of teaching practices at the University of Texas-Austin said it could save up to $266 million if it got half of its professors to be as productive as the top 20 percent of teachers.

MORE: Tenure policy designed to help new moms is hurting women

Both students and faculty agree with Wetherbe, though not always publicly, he said.

“When I talk to students and they understand tenure, they think it’s a really bad idea. I have gotten rounds of applause when explaining what my suit’s about,” Wetherbe said.

“Faculty behind closed doors agree it is being abused and not serving its original purpose,” Wetherbe said.

Harming his research by loading up his classes

Wetherbe’s lawsuit claims the university changed the level of classes he was teaching in 2014 as retaliation for his expressed views on tenure.

“I had taught graduate classes for over 30 years, and two weeks before for the semester begins, they have me teaching freshman introductory classes,” he told The Fix.

The school also “increased my teaching load because I am a professor who doesn’t have tenure and treated me like a professor of practice,” Wetherbe said. “This made it harder to do research.”

Because “my contract said I was a full professor who rejects tenure,” the university’s action against him was “breaching my contract,” he said.

In addition, the lawsuit stated Texas Tech took away his grant money from Best Buy. “I had a $100,000 grant, but the dean wouldn’t let me use the money,” Wetherbe told The Fix.

MORE: White prof denied tenure after quoting N-word in class discussion

It’s not the professor’s first lawsuit against university officials for alleged retaliation, nor his first trip to the 5th Circuit.

In dismissing the federal suit in March, District Judge Terry Means said the professor did not “plead specific facts” about the form of retaliation as required, but “mere conclusory allegations.”

Means noted that Wetherbe had earlier brought retaliation claims against the president and provost after he was passed up for a professorial nomination, denied the business school deanship and removed from his associate dean position.

The 5th Circuit had denied Wetherbe’s original claims because it ruled he was “not speaking as a private citizen on a matter of public concern” when he applied for the deanship and mentioned his anti-tenure views.

‘Against the backdrop of an ongoing public conversation’

But the appeals court changed its tune on this new lawsuit.

It said that the “content, form and context” of Wetherbe’s statements against tenure – in articles he wrote and media coverage of his anti-tenure views – showed he was speaking about tenure in general and not the conditions of his job, as Texas Tech claimed.

“[A]gainst the backdrop of an ongoing public conversation about tenure,” Wetherbe made his statements on “a matter of public concern” and alleged the university retaliated against him for it.

MORE: Cornell used secret rape allegation to deny tenure

Because those claims about his articles have not been adjudicated, his suit can proceed, the 5th Circuit said.

“Absolutely no actions were taken against Dr. Wetherbe as a result of his speech,” Texas Tech spokesperson Chris Cook told The Fix in an email. The school “will file a motion for summary judgment on the remaining causes of action” in the suit.

Wetherbe told The Fix he does not want to keep the money if he wins damages from his suit: “I made it very clear that any financial gain I got would be donated to scholarships.”

MORE: Midwest lawmakers push bill to abolish tenure

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