The Texas House of Representatives’ Committee on Higher Education is considering SB 37, a significant overhaul to oversight of the state’s public institutions of higher education. Having already cleared the State Senate, the looming committee vote is one of the final steps before the legislation could be sent to the Governor’s desk.

This is not good news for the independence of institutions of higher education or for open inquiry.

Texas SB 37 is just the latest of many government interventions at the state and federal level by conservative lawmakers who are frustrated with the lack of viewpoint diversity in many disciplines and institutions of higher education. HxA shares many of their concerns and believes carefully crafted reforms by governments and by the institutions themselves are warranted. But many of the reforms in this bill don’t improve viewpoint diversity, instead they threaten open inquiry.

Here’s a run down on some of the key provisions that cause concern:

Unprecedented intrusion into academic decisions

The legislation would grant each University System’s Board of Governors the authority to:

• “overturn any hiring decision made by the administration of a campus under the board's control and management;” and
• “approve or deny on an individual basis or … [through a subcommittee] each posting or other advertisement for a tenured faculty position in a field related to liberal arts, communications, education, and social work at each institution under the governing board's authority.”

While these are both problematic in their own right, the threat to open inquiry posed when the Board of Governors has veto power over faculty hires and faculty job postings is particularly acute when voting members of Boards of Governors are entirely selected by a Governor and approved by the Senate of the same political party, as is the case in Texas.

And while on the topic of hiring authority, the bill includes this provision stating that “a faculty member of an institution of higher education may not have final decision-making authority on any decision regarding the hiring of an individual for employment by the institution” (emphasis added). This is not just a limit on faculty having hiring authority with respect to other faculty, but also prevents faculty from hiring a teaching assistant, research assistant, or even an intern. This seems cumbersome, unnecessary, and introduces a potential way for administrators to make life hard on faculty gadflies by dragging their feet on signing off on those hires.

Neutering the faculty councils and senates

SB 37 also takes aim at shared governance by declaring that “a faculty council or senate is advisory only.” While this is not itself alarming, it is not uncommon for faculty senates to have some authorities delegated to them. One vague provision states that, “shared governance structures may not be used to obstruct, delay, or undermine necessary institutional reforms or serve as a mechanism for advancing ideological or political agendas.” But what counts as obstruction? Is advising against one of the Administration's plans and trying to defeat it “obstruction”?

Another provision forbids anonymity with respect to votes of no confidence in campus administrators. This seems likely to intimidate people from voting in favor of a no confidence vote because it increases the possibility of retaliation.

The autonomy of faculty councils and senates are further undermined because the bill grants provosts the authority to remove members with the approval of the institution’s president. Most institutions place the authority to dismiss members to their fellow members. Allowing provosts and university presidents to remove members of these committees gives them a powerful tool to silence critics.

Inviting the injection of politics into curriculum decisions

One deeply concerning provision in this bill empowers the Boards of Governors to establish “an advisory committee to review the core curriculum requirements of institutions of higher education” where each of the members would be nominated by Republicans or individuals who were themselves appointed by the Governor, who is of the same party. While the legislation does not itself require partisan curricular decisions, curricular committees of political appointees that lack political diversity are far more likely to make ideological curricular recommendations than those with viewpoint diversity among their members. The risk that this will lead to partisan curricular recommendations is great given that, in practice, only conservatives have authority to make appointments, given Texas’s current political climate. It’s also worth noting that there is no requirement that any of the appointees on these committees have any experience with teaching in higher education.

Creating a dependent ombudsman

University system ombudsmen are typically created to independently investigate complaints of failures of institutions to follow their legal obligations. That is not the case with SB 37.

Instead, it establishes an Office of the Ombudsman appointed by the governor with the advice and consent of the Texas Senate. The bill is clear that “the ombudsman serves at the pleasure of the governor.” This lack of independence is the theme of SB 37 and raises questions about whether the ombudsman will behave politically.

Concluding thoughts

The controversial bill grapples with a serious question: What should the relationship be between the state legislature and the state’s public institutions of higher education? And while reasonable minds may disagree on the precise limits of the government’s authority over public institutions of higher education, the degree of entanglement presented by SB 37 poses serious threats to open inquiry.

But, given the serious governmental overreach at the heart of SB 37, HxA hopes the Texas House will reject the bill. Setting the right line with respect to public institutions’ accountability to the public is challenging, but the lines set in SB 37 are troublingly off the mark. They compromise the independence of institutions and put open inquiry at serious risk.