The Tennessee Legislature has passed a new higher education bill with some interesting reforms.  Just as my home state of Kentucky is considering legislation that would make transfer from two- to four-year institutions easier, one part of the legislation in Tennessee aims to standardize transfer.  I found the most intriguing component of the new legislation, however, a change in funding for public colleges and universities.  Funding for institutions will now be tied, in part, to how well they do in terms of retaining and graduating students, as opposed to just the number of students enrolled. 

With this move, I think Tennessee has embarked on an approach with both promise and peril.  The promise is that the legislation might help nudge the state’s public institutions in a positive and meaningful manner to focus on issues related to student retention and graduation.  Of course the danger is that institutions’ concern with graduation rates will result in watered down academic standards in an effort to retain (appease) students.

The challenge for Tennessee public colleges and universities will be to focus on enhancing retention and graduation efforts in ways that align with sound educational practice and promote academic quality.  Given the difficult budgetary times in which we exist, however, this may not prove an easy task.  Doing things like making sure there are sufficient numbers of academic advisors for students and making improvements to student support services in general may well entail additional costs and also potentially cause friction by challenging entrenched institutional practices.  A path of lesser resistance might be for institutions to further cater to the “student as customer” concept that presents some serious challenges for higher education.  For instance, instructors may end up feeling increased pressure (especially non-tenured faculty or those working off the tenure track) to avoid failing students or to assign less challenging assignments in order to obtain favorable student evaluations.

I’m certainly not saying that such a situation will develop in Tennessee, and I am an advocate of efforts to improve the educational experiences of students, but a focus on output (graduation rates) does not automatically equate with improved educational outcomes.  It will be interesting and informative to observe how institutions in the state respond to this legislative initiative.

This past month, a state court in Idaho dismissed the suit of Habib Sadid, a tenured professor at Idaho State University (ISU), who claimed that he was retaliated against for criticizing the actions of university officials.  Among his claims, Sadid argued that the university’s actions violated his First Amendment rights.  A copy of the decision can be found on the American Association of University Professors' (AAUP) website.

The case marks yet another decision in which a court has relied on Garcetti v. Ceballos, 547 U.S. 410 (2006), to hold that a professor had not engaged in speech protected by the First Amendment.  In Garcetti, the Supreme Court held that a public employee engaging in communication pursuant to carrying out his or official duties does not engage in speech for purposes of the First Amendment.  But, the Court left open the question of whether the decision applied to speech by faculty members.  Still, several courts have applied Garcetti to faculty speech with no reasoned consideration of the extent to which, if any, that the case should apply to such speech.  In Sadid’s case, for example, the court relied for persuasive authority on a federal district case, Hong v. Grant, 519 F. Supp. 2d 1158 (C.D. Cal. 2007), where the court also reflexively applied Garcetti. 

The interesting (and troubling) twist in Sadid’s case involves the court’s determination that he did not write newspapers articles critical of the university as a private citizen.  The court held that the “tone” of the letters was that of an employee, deeming it especially important that he identified himself as an ISU employee.

The case was another example of how several courts have used Garcetti in faculty speech cases with no consideration of the fact that the Supreme Court left the door open of whether the decision should even apply to faculty speech.  Even proponents who argue that First Amendment protection for academic freedom should, at most, accrue to institutions versus individual professors have not embraced the idea of applying Garcetti to faculty speech.  The case especially touched a nerve with me since I wrote a recent article on the issue of individual academic freedom under the First Amendment with a special focus on the Garcetti decision.  Feel free to check it out if you’re so inclined.  The article is:  A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom, 36 Journal of College and University Law 145.