Faculty Rights in Texas

Faculty members in Texas have fewer legal
rights compared to their colleges in other states

Contracts at state universities are unenforceable in Texas

Faculty members are offered and accept employment contracts
that are binding on them, but not on their public employer.
Universities can breach them at will because state entities,
including institutions of higher education, enjoy sovereign
immunity in Texas.

Texas is a right-to-work (i.e., anti-union) state

Faculty members have the right to join a union under the First
Amendment and the Texas Labor Code, but state universities will
not recognize a union as a collective bargaining agent.

State law forbids state employees, including faculty, from
engaging in organized work stoppages (strikes), the most
important source of leverage for labor in dealing with management.

Unions and professional associations may represent individual
professors in the administrative grievance process.

The state wins no matter what

State universities assert sovereign immunity when sued and
prevail regardless of merit unless Congress or the Texas
Legislature has abrogated immunity for specific types of claims,
such as personal injury and wrongful death claims (under very
limited circumstances), discrimination and retaliation for
whistle-blowing.

Immunity to suit for breach of contract has generally not been
waived, regardless of whether it is a faculty employment contract,
or a contract with an independent contractor or private company.
Most professors are unaware that their contracts are
unenforceable because their appointment letters are silent on the
issue. The issue is currently before the Texas Supreme Court.

When sued for wrongdoing, administrators invoke a variety of
legal immunity doctrines: Sovereign and governmental immunity
when they are sued in their official capacity; official immunity and
qualified immunity when they are sued in their individual capacity.

Administrators have ample legal fire power and need not
fear lawsuits.

Universities have in-house counsel and an army of lawyers at the
Litigation Division of the Attorney General's Office readily
available to invoke the immunity doctrines on their behalf, and to
defend them in litigation should a faculty member's suit survive a
motion to dismiss for lack of jurisdiction. Because the odds are so
heavily against them, few litigants are able to obtain a private
attorney on a contingent fee basis, and thus also suffer a huge
financial disadvantage in court.

Some avenues for redress do exist

That said, all is not lost. While the deck is generally stacked
against faculty caught up in employment disputes with
administrators at state universities, high quality legal
representation can make a difference.

While not a remedy for every employment-related grievance, civil
rights suits are a means to vindicate First Amendment and Due
Process rights. Click her e for recent cases. Even though
employment contracts are unenforceable as contracts, they can
provide a basis for a viable Section 1983 constitutional violation
claim because a contract constitutes a vested property interest for
due process purposes.

Denial of freedom of speech and association is actionable without
a showing that the faculty member-plaintiff had a property interest
in his or her employment. At least in theory, un-tenured
professors and even adjunct professors have free speech rights.

Access to information

Texas also has a strong Open Records Act, which faculty can use
to get information in their personnel file and other documents
pertaining to a grievance they may have.

The current Attorney General has demonstrated his commitment
to open government by vigorously enforcing the Open Records
Act, now known as Public Information Act. That may be ironic,
given the fact that the same Attorney General represents state
universities in employment litigation, but it is nevertheless true.
Attorney General Greg Abbott has recently initiated criminal
prosecution of violators. He is thus sending a strong message that
the open records law must be complied with.

Working for change

Faced with injustice, people have a choice: give up or try to
change things for the better. We opt for the latter.
See our Action Agenda.