Academic Freedom and Tenure: The University of Texas ... · In accor-dance with Association practice, the text was then edited by the Association’s staff, and, as revised, with

www.AAuP.org 2010 Bulletin

19

1. The text of this report was written in the first instanceby the members of the investigating committee. In accor-dance with Association practice, the text was then edited bythe Association’s staff, and, as revised, with the concurrenceof the investigating committee, was submitted to CommitteeA on Academic Freedom and Tenure. With the approval ofCommittee A, the report was subsequently sent to representa-tive faculty members involved in the events and to theadministrations of the University of Texas Medical Branchand the University of Texas System. In light of the responsesreceived, and with the editorial assistance of the staff, thisfinal report has been prepared for publication.

tion to be distributed to all faculty and staff who wishedto contest the financial basis for the termination of theirappointments. Because it provides a succinct summaryof the arguments that would figure in University ofTexas System correspondence with the staff of theAmerican Association of University Professors and indiscussions with the undersigned investigating commit-tee, it is quoted here in its entirety:

As of November 12, 2008 it was determined thatUTMB suffered capital losses, including lossesresulting from damages to buildings and equip-ment, of approximately $400 million due toHurricane Ike. Further, business interruption costswere projected at approximately $500 million.Projections indicated that John Sealy Hospitaloperations would not be immediately returned topre-hurricane levels resulting in a significantlyreduced need for health care personnel and serv-ices and reduced revenue streams from inpatientand outpatient care. Total projected hurricanerelated costs were in excess of $700 million.

Financial analyses also showed that UTMB’srate of expenditures, including the continuationof wages and benefits for faculty and staff, wouldexceed revenues by approximately $40 million permonth. UTMB cash reserves were insufficient tofund the pre-hurricane level of operations.Financial projections showed that UTMB woulddeplete its financial resources and reserves by theend of March, 2009.

Other sources of funds, such as the PermanentUniversity Funds, Available University Funds, andmonies projected to be provided by the FederalEmergency Management Agency are not authorizedto be used for standard ongoing operating expensesor the payment of wages and benefits at UTMB. UTSystem and institutional endowments are devotedby law to specific uses and cannot be used for wages

I. IntroductionOn September 13, 2008, the city of Galveston, Texas, in-cluding the University of Texas Medical Branch, suffereddevastation as a result of the landfall of Hurricane Ike.On the campus itself, more than 1 million square feet ofbuilding space was flooded, including the first floor ofthe John Sealy Hospital, which as a consequence lost itsblood bank, sterile processing unit, pharmacy, and cafe-teria. Initial university estimates indicated losses of nearly$710 million, of which the largest portion, $276.4 mil-lion, represented losses from business interruption. Al-though medical students were able to return to Galvestonapproximately five weeks after the hurricane, and thehospital reopened (with diminished capacity) before theend of the year, the University of Texas Board of Regents,estimating that the campus’s current rate of expendituresexceeded revenue by almost $40 million per month, pre-dicted that UTMB would “deplete its financial resourcesand reserves in approximately three months, leaving theinstitution in the untenable position of having no fundsto continue to operate.” As a result, on November 12 theboard declared a state of financial exigency. The reason-ing behind this decision was later embodied in a formal“Statement of the Basis for the Initial Decision to ReduceAcademic Positions,” prepared by the UTMB administra-

Academic Freedom

and Tenure:

The University of Texas

Medical Branch

(Galveston)1

(April 2010)

20www.AAuP.org2010 Bulletin

and benefits at UTMB. Furthermore, state fundsare not available for use through [the] UT System;rather, the legislature appropriates funds directlyto each individual institution within the System.

The realities of UTMB’s economic circumstancescreated an imminent financial crisis, compellinga reduction in force in order to assure the ongoingfiscal validity of the remainder of UTMB’s medicaleducation, research and health care enterprise.Following its declaration of a state of financial exigency,

the board instructed the UTMB administration to imple-ment a reduction in force of approximately 3,800 full-time-equivalent faculty and staff positions, a figure thatsubsequently fell to slightly under 3,000.2 On November 17an e-mail entitled “Special Message from the President”went out from UTMB president David Callender, whowrote, “Tomorrow, we will begin giving notices to approx-imately 2,000 faculty and staff whose positions are partof the reduction in force authorized by the University ofTexas System Board of Regents. We expect to completethe process Monday, November 24.” On the latter date,the provost sent letters of termination to affected faculty.As a consequence of the procedures followed in the im-

plementation of the reduction in force, several facultymembers sought the advice and assistance of the AmericanAssociation of University Professors during the fall andwinter, and following staff efforts to resolve the Association’sprocedural concerns through correspondence with thesystem and institutional administrations, the Association’sgeneral secretary authorized the appointment of this in-vestigating committee to report its findings to CommitteeA on Academic Freedom and Tenure. Two members ofthe committee met in early September 2009 in Austin,the headquarters of the University of Texas System, withChancellor Francisco Cigarroa, Executive Vice Chancellorfor Health Affairs Kenneth Shine, and General CounselBarry Burgdorf.3 The two members also met separately

with George Reamy, who as a part-time staff member ofthe Texas Faculty Association (TFA), the statewide high-er education arm of the National Education Association,had represented several faculty members at their appealhearings in his capacity as TFA faculty advocate. At the beginning of October, all three members of the

committee met in Galveston with Garland Anderson,UTMB provost and dean of the School of Medicine, andUTMB counsel Carolee King, as well as with UTMB staffattorney Dan Sharphorn, who was provided as counselby the system to the faculty panels hearing the appealcases (see Section III.C below). In addition, the investi-gating committee met with eleven members of the fac-ulty, one of them representing the committee initiallyformed to review departmental recommendations (here-after the review committee) and two of them, alongwith Mr. Sharphorn, representing the faculty panels thatheard individual cases (hereafter the appeal panels).The remaining eight were complainants, one of whomhad since resigned and taken another position and withwhom the committee spoke by telephone. The commit-tee also met with a faculty member at the MD AndersonCancer Institute in Houston, who had served as presi-dent of the systemwide Faculty Affairs Council. Theinterviews took place both with faculty members whoseservices had been terminated as a result of the reductionin force, including two former UTMB Faculty Senatepresidents, and with representatives of the faculty bodiesinvolved in the decision-making and appeals processes.The committee was received hospitably by all parties.Following its visit to Galveston the committee held con-ference calls with President Callender, who had beenunavailable at the time of the committee’s visit, andwith counsel King, to pursue further some of the ques-tions raised during the interviews.

II. The Institution The Medical Department of the University of Texas heldits first classes in 1891, in one classroom building andone hospital in Galveston, with twenty-three studentsand thirteen faculty members. Its location had much todo with the fact that at that time Galveston was thelargest city in Texas. Renamed in 1918, the Universityof Texas Medical Branch became the home of the firstmedical and nursing schools in Texas and eventuallyexpanded to an eighty-five-acre campus on GalvestonIsland with fifty-four major buildings. Prior to the land-fall of Hurricane Ike in September 2008, UTMB enrolledapproximately 2,300 students in undergraduate, gradu-ate, and medical degree programs in the Schools ofMedicine, Nursing, and Allied Health Professions andthe Graduate School of Biomedical Sciences, all of

2. The necessity for such a declaration seems to havebeen apparent to the board and UTMB administration forseveral weeks, but at the request of state legislative leaders itwas delayed until after the November general election. Theadministration has stressed to the investigating committeethat it actually had about five weeks, rather than a few days,to prepare the initial round of termination recommenda-tions in consultation with the departmental chairs.

3. Dr. Cigarroa was president of the UT Health Center atSan Antonio prior to his installation as the new systemchancellor early in 2009. Dr. Shine was serving as interimchancellor at the time Hurricane Ike struck, and, after Dr.Cigarroa’s appointment, he returned to his former positionas executive vice chancellor of health affairs.

21www.AAuP.org 2010 Bulletin

which are represented on the UTMB Faculty Senate.4 Inaddition, UTMB houses two institutes, the MarineBiomedical Institute and the Institute for the MedicalHumanities. Before the implementation of the reductionin force in November 2008, UTMB had more than 8,000non-faculty employees and 1,084 permanent facultymembers, including both basic scientists and clinicians.The reduction in force affected only the School ofMedicine.While UTMB was the first medical facility in the

University of Texas System, that system now has five otherhealth-related institutions, each with its own adminis-tration but all under the oversight of the UT Board ofRegents. Individual institutions in the UT System haveconsiderable budgetary autonomy, and the system doesnot supervise a unified presentation at the time of budg-etary hearings, nor do the regents technically haveauthority to move money from one campus to another.The system and the campuses engage in continuingconsultation, however, and the system does advise indi-vidual campuses on their budget requests. Health science centers in the University of Texas System

are encouraged to develop specific strengths and missions,and UTMB is no exception. It provides safety-net carefor indigent patients from around the state, serving atpresent patients from more than 150 counties, and it hasalso been the site of a top-ranked trauma center, whoseoperations were interrupted by the hurricane. The insti-tution is one of only two health science centers in thesystem to own their own hospitals; the other is a muchsmaller operation in Tyler. Other hospitals in the systemare operated under other authorities, and hence UTMB,in addition to having substantial Medicaid and indigent-care commitments, accounts for a disproportionateshare of health care expenses systemwide. In the healthscience centers, both basic scientists and clinicians,absent specific stipulations in their contracts to the con-trary, are eligible for tenure, albeit by different standardsappropriate to the two cohorts. A post-tenure-review sys-tem can theoretically lead to dismissal, but no facultymembers with whom the investigating committee metrecalled any such instance, and several of those notifiedof termination referred to their positive post-tenurereviews in the years and months leading up to thereduction in force as proof of satisfactory performance.Like an increasing number of public institutions,

UTMB may be more accurately described as “state-

assisted” than “state-supported,” and by the time of thehurricane, state appropriations amounted to about 10percent of the operating budget. Hospital contracts andphysician income provide about 53 percent of the totalfunding for the School of Medicine, with the balancecoming from cost recovery on externally funded grantsand from philanthropy, notably financial support pro-vided by the Sealy and Smith Foundation to the hospitalthat carries the Sealy name. The education and researchmissions of UTMB are thus effectively supported in largemeasure by clinical activities, a point that will be ofcritical importance in assessing the question of finan-cial exigency (see Section IV). Faculty and staff salaryand benefits account for about 67 percent of theschool’s budget.Faculty input to the regents is provided by the Faculty

Affairs Council, a systemwide faculty body that reportsannually to the board and works through its representa-tives with several board committees. The council hasbeen consulted in the development of institutional poli-cies, such as the question of how to define salary supportin medical schools. Both it and the board’s health affairscommittee have been involved in changes in the regents’rules as they affect medical centers. At the time of theevents described in this report, the council sent a letterof protest to the board, outlining its own view of one par-ticular policy, Rule 31003 of the system’s Rules and Regu-lations of the Board of Regents, entitled “Abandonmentof Academic Positions and Programs,” and in particularSection 3, “Elimination Due to Financial Exigency,”which is at the center of this report. Under regents’ pro-cedures, a campus president determines the existence offinancial exigency, though a formal declaration may, asin this case, come from the board. Rule 31003 nowheredefines financial exigency, however, a point to which theinvestigating committee returns later.5

III. Events and Actions Subsequent to theDeclaration of Financial ExigencyThis section presents information, as understood by theinvestigating committee, on events following and relat-ed to the declaration of financial exigency at UTMB.

A. THE FACULTY REVIEW COMMITTEE

The UTMB administration took action within days afterthe board of regents declared a state of financial exigency.The provost met with department chairs in the School of

5. Information provided by the board historian indicatesthat after Rule 31003 was first promulgated in 1980, it wasreviewed at least twice, in 1992 and 2003–04, both timeswith input from the Faculty Advisory Council.

4. Senate representation is as follows, according to senatebylaws: five members from the allied health professions, sixfrom the graduate school, ten from medicine, and five fromnursing.


Medicine and instructed them to classify their faculty intheir respective deparments into three categories. The “A”list was to consist of persons whose services were criticalto carrying out the academic, clinical, and researchmissions of the department and could therefore not bespared. The “B” list would include faculty members whowere not critical but whose loss would pose a difficulty tothe department. The “C” list was to contain the names offaculty members whose services could no longer be justi-fied under the present economic circumstances. Someconfusion existed among the faculty as to whether newlyappointed faculty were held to be exempt from theprocess. No such directive appears to have come from theadministration, though in one or two instances preferen-tial treatment for new appointees was articulated as amatter of departmental policy. According to the provost,departments were instructed to cut administrative posi-tions and professional staff by 50 percent before anydecisions affecting faculty were made. (As a result of thisaction, according to the administration, the number ofdepartment administrators was reduced from twenty-oneto twelve.) The chairs were given ten days to make theirdecisions and report back. When some chairs resistednaming anyone to the “C” category, the provost toldthem in a second meeting that they could not escape theresponsibility for naming faculty or staff for appointmenttermination. In short, every department chair, whateverthe relative importance or centrality of that departmentto the academic mission or whatever its recent history interms of additional, flat, or reduced financial support,was held to the same obligation of providing candidatesfor termination. The chairs were enjoined to secrecy, andapparently in most cases neither their advisory commit-tees nor even their vice chairs were informed. Following receipt of the final lists from the chairs, the

president, on the recommendation of the provost andunder the authority granted to him by Rule 31003,appointed a six-member faculty review committee,drawn from lists of senior faculty members recommend-ed by the chairs themselves, to make recommendations“as to which academic positions and/or academic pro-grams should be eliminated.” Section 3.2 of Rule 31003specifically states that such a committee will review andassess all academic programs as part of the process,identifying “those academic positions that may be elim-inated with minimum effect upon the degree programsthat should be continued.” The committee is chargedwith reviewing “course offerings, degree programs, sup-porting degree programs, teaching specializations, andsemester credit hour production.” Section 3.3 stipulatesthat, once that review is complete, the committee makes

recommendations on the elimination of positions byreviewing the “academic qualifications and talents” ofthose holding academic positions and the needs of theprogram. The committee is to weigh the faculty mem-ber’s past performance and future potential in decidingon its recommendations. Even before the review panel issued its report, several

members of the UTMB faculty challenged the mannerof appointment to the committee and the Rule 31003procedures themselves. These faculty members pointedout, first, that the chairs, having drawn up their lists offaculty members to be recommended for release, thenexercised additional influence by nominating the mem-bers of the initial faculty review board. Second, theyobserved that, rather than undertaking programmaticreview, which would have provided data on the role ofall faculty in a given program or department, the reviewcommittee was confined to vetting the recommenda-tions of the chairs as to who should be placed on the“C” list and thus could not compare the qualificationsand merits of those recommended for release with thosewho were not. They objected further that the facultysenate had been given no role in discussing the consti-tution of the committee, that the committee’s member-ship was kept secret, and that the committee kept norecords of its proceedings. The provost defended theconstitution of the committee, stating that he asked thechairs to name senior tenured faculty who were knownfor their judgment and their credibility and that he didnot know all the members himself. The membership, hesaid, was kept secret until the release of the committee’sfindings because he did not wish its members to be sub-ject to public pressure. The senate was not consulted,the provost further said, because schools other than theSchool of Medicine were represented on it, though inthe event one senator was named to the committee.(Some faculty members complained that this individualwas a colleague in the provost’s own department.)Whether the faculty review committee should have keptminutes in the form of a record of discussions seemsmore debatable, given that discussions in personnelcommittees of appointment, promotion, and tenure arepublicly reported only in the form of the outcome ineach case.The review committee met for two days, scheduling

separate interviews with twenty department chairs.According both to the provost and to the faculty repre-sentative from the committee with whom the investigat-ing committee met, the review committee was not pro-vided papers on any of the candidates for release inadvance of the meeting. As stated earlier, the committee


did not have access, either formally or informally, to thenames of other faculty members not included on the“C” list, but the committee’s faculty representative stat-ed that in any case there would have been no time toconduct a more extensive review. Rather, the committeesummoned the particular department chair to discusseach case. It then met without the chair’s presence andvoted the “C” recommendations up or down, usuallyup, though the provost recalled at least two occasionson which the graduate dean intervened on behalf of thefaculty member because of his or her usefulness to thegraduate program. No member of the committee waspermitted to be present for the discussion and vote onany case in his or her own department, and indeed insome instances members claimed not to have knownwho among their colleagues had been notified of layoffuntil meeting them during the appeals process.It is clear that, in the time provided, the committee

could have applied only minimal standards of proof inreviewing the cases of both tenured faculty membersand nontenured faculty members at risk for terminationof their existing appointments before their conclusion.In one of the appeals hearings, the provost estimatedthat approximately one-and-a-half hours was devoted toeach department’s “C” list, each of which containedseveral faculty names. Under Section 3.4 of Rule 31003, tenure is taken into

account in termination decisions resulting from finan-cial exigency only when “two or more faculty membersare equally qualified and capable of performing a par-ticular teaching role,” in which case the tenured facultymember is to be given preference. Inasmuch as thereview committee was not provided with data on thosenot on the “C” list and given that its members had noway of evaluating or comparing the nontenured facultywith tenured faculty, except to the extent that suchinformation might have been volunteered orally by thechair, its ability to weigh tenure was of course nugatory.The language of Section 3.4 does not cover the basis fortermination in cases in which no person other than atenured faculty member is performing particular duties,nor does it explain how or on what basis the criterion of“equally qualified and capable” is invoked. In the wordsof the committee representative who spoke with theinvestigating committee, “The panel was told thattenure was no longer binding,” except in cases of other-wise approximately equal merit. This representative did,however, believe that the fact of tenure had required ahigher standard of proof in committee discussions andthat the basis for “breaking” tenure had to consist ofmore than a couple of years of relatively inactive

research funding (although in some cases precisely thatcriterion figured in a termination decision). The facultyrepresentative saw the function of the panel as confinedto making certain that there was nothing unreasonableor “grossly inappropriate” in the recommendations ofthe chairs. Such a characterization of the committee’sparameters appears to be a far more restrictive viewthan is implied in Section 3.3. In addition, Section 3.5requires that such a committee recommend a priorityorder of those to be released, with reasons for that prior-itization; this does not appear to have occurred, or if itdid, it is not a matter of public record. At the end of the process, the numbers of termina-

tions proposed in each department were as follows:Anesthesiology 7Biochemistry and Molecular Biology 5Community-Based Clinics 2Family Medicine 3Internal Medicine 22Microbiology and Immunology 4Neurology 3Neuroscience and Cell Biology 10Obstetrics and Gynecology

Outreach 3UTMB-Based 8

Ophthalmology 2Orthopedic Surgery 5Otolaryngology 3Pathology 12Pediatrics 4Pharmacology 2Preventive Medicine and Community Health 9Psychiatry 5Radiology 4Surgery 18TOTAL 131

The number of reductions in a given departmentwas not, according to the UTMB administration, basedon the relative importance of a department to the over-all academic mission of the School of Medicine(though educational and research factors were alsoweighed) but principally on the impact of the hurri-cane on the carrying out of clinical functions, that is,patient care. For example, the reduction of the numberof available beds in the hospital as a result of hurri-cane damage diminished the need for faculty inpathology, but obstetrical and gynecological care hadto be up and running as soon as possible after thehurricane. Psychiatry also experienced a significantcut in nonclinical faculty, resulting in effect in a


in whole or in part to Austin.7 Dissenting faculty membersalleged that the speed of the process evinced an entire lackof real deliberation on questions of educational impactand faculty status. They and some media reporters com-plained that the board had not consulted with the facultyor its elected senate before declaring a state of financialexigency nor sufficiently considered less drastic means toaddress financial difficulties. Furthermore, many amongthe faculty saw the role played by the chairs in the presi-dent’s naming of the faculty review committee as inher-ently at odds with the notion of any genuine facultyparticipation or even consultation with the faculty atlarge. Critics complained that many members of thereview committee also had administrative appointments.Members of the UTMB Faculty Senate were quick to

respond to the reduction-in-force action as well. Even be-fore the outcome of the review committee’s deliberationswere made public, the senate chair, Professor S. DavidHudnall, e-mailed the president on November 14, invok-ing Rule 31003 and asking if the faculty senate would begiven any role in making recommendations regardingacademic positions or programs to be eliminated or inhearing possible faculty appeals. On November 26,Professor Hudnall e-mailed his fellow senators to statehis “serious concerns regarding the RIF process, the sta-tus of tenure, and the ability of the senate to participateeffectively in shared governance.” Following the receiptof a number of inquiries from faculty colleagues affectedby the reduction in force, Professor Hudnall again wroteto the president and to the provost on December 17,arguing the case for transparency in the process and forthe role of the senate as “the only democratically electedbody on campus.” This perceived lack of transparency andthe exclusion of the senate from the process would leadto a number of additional faculty allegations that no

change of departmental mission. That portion of Rule31003 (Subsection 3.2) requiring an assessment of aca-demic programs does not seem to have been carried outexcept insofar as the relationship of released facultymembers to the teaching function of their particulardepartments was considered. Nor were departmentsasked to come up with a specific dollar amount, or per-centage of total budget, as a target; rather, they wereasked simply to prepare the three lists.Following his receipt of the recommendations of

the review committee, the provost wrote a memoran-dum to President Callender on November 21 entitled“Faculty Reduction in Force,” with a list “formed inaccordance with the Texas Board of Regents Series30000, Rule 31003, Section 3” of faculty positions rec-ommended for termination. One hundred and twenty-seven faculty members in the School of Medicine,more than forty with tenure and approximately fifteenothers on the tenure track, received notices of termi-nation that Monday, providing just over six months ofnotice to non-tenure-track faculty (notice effectiveMay 31, 2009) and just over nine months to thosewith tenured and tenure-track appointments (effectiveAugust 31, 2009). Among those whose services werebeing terminated were the current and immediate pastpresidents of the faculty senate, both of whom heldtenure, and, according to the November 30 issue ofthe Galveston Daily News, a number of “experts inmolecular medicine, researchers on infectious dis-eases, and well-known surgeons.” The outcome of the panel’s deliberations, once they

became known, ignited tempers on campus and receivedconsiderable attention in the local press. Critics of thereduction in force included those in the community whowere primarily concerned with the economic impact ofthe faculty and staff terminations and with whether thestep just taken was the first move toward closing theGalveston medical branch and moving services to themainland. Criticism also came from the Texas FacultyAssociation (TFA), the Texas Daily Newspaper Association,and some state legislators with ties to the Galvestonarea. The board of regents was taken to task for handlingin a private meeting what many saw as a matter of publicinterest regarding the declaration of financial exigencyand the very survival of the medical branch.6 The TFAalleged that the closed-door meeting and reduction inforce were meant to facilitate what the system leadershiphad long hoped to do, namely, move the medical school

7. In a written response to a prepublication draft of thisreport, Executive Vice Chancellor for Health Affairs KennethI. Shine and General Counsel Barry D. Burgdorf of theUniversity of Texas System pointed out that Dr. Shine, at anOctober 12, 2008, town hall meeting on the UTMB campus,had specifically stated that there were no plans to move theinstitution to Austin, “which remains the case.” Although thereport of an external consultant may have fueled the con-cerns of some faculty that all options were on the table, theinvestigating committee has found no evidence that theadministration planned to move UTMB off Galveston Island,whether to Austin or another mainland location. While clin-ical operations have been expanded off the island, the statedpurpose of this expansion has been to improve patient mixand revenue streams.

6. On the TFA lawsuit under the Texas PublicInformation Act, see Section III.D below.


criteria for retention or termination had been put forthother than the general language of Regents’ Rule 31003and that the declaration of financial exigency was notbona fide but rather a cover for the purging of tenuredfaculty as well as an assault on the principle of tenureitself.8 Furthermore, a number of faculty members whohad received termination notices reported that they werebeing required by their chairs to abandon laboratory andoffice space within a matter of weeks, essentially beingforced out of the medical center and putting years of re-search at risk. Such actions seem to have occurred onlyin certain departments. In these cases the administration,to its credit, rescinded such directives. The administra-tion’s view was, and continues to be, that it communi-cated with the senate at its regular meetings regardingthe unfolding state of affairs, but the provost, in his dis-cussion with the investigating committee, indicated someworry over the senate potentially harboring an inappro-priate interest in knowing more about specific hearings,which he believed could not be divulged on grounds ofconfidentiality. This investigating committee has not, how-ever, seen evidence that the senate had any such designs.

B. THE TERMINATION LETTERThe following is an example of the letter of terminationthat the provost sent to individual faculty members, thisone to a tenured professor with twenty-two years ofservice:

Dear Dr.___:Due to the devastation caused by Hurricane

Ike and our state of financial exigency, we regretto inform you that your position has been elimi-nated. The procedures for elimination of academ-ic positions due to financial exigency are set forthin the Regents’ Rules and Regulations, Rule

31003, sec. 3 (attached for your convenience).Thus, in accordance with the Rules, your positionhas been identified as one that will be eliminated.Unless your appointment expires earlier, youremployment will be terminated effective August31, 2009.

We will be pleased to notify you, if a vacancyoccurs at UTMB in your field of __, within twoacademic years following the date of your termi-nation. If you timely apply and are qualified forthe position, you will be given priority considera-tion along with the other qualified applicantswhose positions have been eliminated.

You may go on line at www.utmb.edu/benefitsto obtain information regarding the continuationof medical, vision, dental coverage, conversion ofyour term life insurance, and retirement options,as applicable. A benefits representative will also beavailable at the Clear Lake Center, 20728 GulfFreeway, Webster, Texas. Thank you for your yearsof service to UTMB, and I wish you the best in allyour future endeavors.The provost’s language closely tracks that of Regents’

Rule 31003. The second paragraph of the letter is basedon Section 3.6, which sets out the provision for notifica-tion of openings in the released faculty member’s field.(The investigating committee addresses this issue inSections III.D and IV.C of this report.) Section 3.7describes the establishment of hearing committees incase of appeals, and Section 3.8 states that a facultymember may pursue an appeals procedure in which the“burden shall be upon the appealing person to show bya preponderance of the credible evidence” that theaction taken was not for reason of financial exigency orwas otherwise “arbitrary and unreasonable.” It will benoted that the provost’s letter speaks to the appeals pos-sibility only by indirection, in referring the recipient tothe language of Rule 31003. By giving no other reasonfor the termination than the need for a reduction inforce and the fact that the faculty member’s position hasbeen identified for elimination, the letter in effectrequires the faculty member to go through the appealsprocess to obtain an account of the reasoning that ledto the decision to select him or her for termination.

C. THE FACULTY APPEAL PANELS

1. The Faculty AppellantsApproximately thirty faculty members initially chose toappeal their release within the statutory maximum ofthirty days from the date of notice of termination. Hard

8. In their response to the prepublication draft of thisreport, Dr. Shine and Mr. Burgdorf stated, “It seems thateach allegation raised by a faculty member, critic or news-paper reporter was accepted without rebuttal, regardless ofits foundation, including claims that ignored the catastro-phe or implied it was a convenience to the administrationand said that the declaration of financial exigency wasmerely an attempt to purge tenured faculty.” This investigat-ing committee would respond that this section of its reportsimply sets forth allegations as allegations; the purpose ofthis section is to indicate the climate of opinion amongsome faculty members and other Galveston constituents atthe time of the events. One task facing this committee wasthe assessment of such allegations, which it has set forthprimarily in the concluding pages of the report.


figures are somewhat elusive in cases of this kind,because some faculty members may have initiated anappeal but later reached a settlement, resigned to take aposition elsewhere, or retired. According to the UTSystem representatives with whom the investigatingcommittee spoke, 124 faculty members were released(three fewer than the original 127 notified) and thirty-one appeals were filed of which twenty-nine wereprocessed. Three of the appellants prevailed as a resultof the hearings, and at least two others, though they losttheir appeals, were subsequently reinstated. Of the threeinstances in which the faculty member prevailed, how-ever, one involved a non-tenure-track faculty memberwho succeeded only in getting his termination dateextended from May 31 to August 31, the same effectivedate accorded to tenured faculty.George Reamy, the TFA’s designated “faculty advo-

cate” who represented many of the appellants in theirhearings, obtained copies of the appellate hearingreports in twenty-eight cases under the Texas PublicInformation Act and made them available to the inves-tigating committee prior to its visit. Of those whoserank and tenure status were identified from the min-utes, fourteen held tenured positions at the time of thetermination of their appointments, and four weredescribed as nontenure track, while the remainder ofthe files do not indicate tenure status or length ofservice. Those identified as tenured ranged in length ofservice from seventeen to thirty-five years, represent-ing collectively more than three hundred years of serv-ice to the institution. Association-supported policyregards both the abrogation of tenure and the abroga-tion of a term appointment prior to its stated date ofexpiration as entitling the faculty member to due-process protections, with the burden of proof intenured and nontenured faculty cases alike resting onthe administration.Eighteen of the released faculty appellants held the

PhD degree and ten the MD. As noted earlier, the vastmajority of those released did not appeal, whetherbecause of retirement or resignation or for some otherreason. In two departments, psychiatry and otolaryn-gology (and perhaps others that did not come to theattention of the investigating committee), the chairsstated that their selections were made in order to turnthe department decisively in a clinical direction toimprove its revenue stream, and in these cases there isno doubt that basic scientists were regarded as moredispensable.By a slight majority, appeals were filed on both

grounds laid out in Rule 31003, Section 3.8(d), namely,

that the termination was not based on financial exi-gency and that the decision to release the particularappellant as opposed to another individual was arbitraryand unreasonable. Nearly half of the appellants basedtheir appeals on the second of these grounds only.

2. Panel Procedures Rule 31003, Section 3.7 states that “a person to be ter-minated who appeals to the hearing committee shallbe given a reasonably adequate written statement ofthe basis for the initial decision to reduce academicpositions and, upon request of the person, shall begiven any written data or information relied upon inarriving at such decision.” In responding to thoseseeking a hearing, the administration customarilyappended two documents. The first was the four-paragraph statement describing the reasons for declar-ing the financial exigency, quoted in the first section ofthis report. The second was an affidavit that requiredthe applicant to subscribe to the statements incorpo-rated in Rule 31003, Section 3.8(d), beginning, “I amaware that the burden of proof in the appeal hearingfor recommendation of the termination of my positionas provided by Regents Rule 31003 is upon me, asappealing faculty member” and citing the two groundsfor appeal: “(1) The decision to terminate me as com-pared to another individual in the same discipline orteaching specialty was arbitrary and unreasonable”and “(2) Financial exigency was not in fact the reasonfor the initial decision to reduce academic positions.”The appellant could check one or both grounds forappeal. The appeal panels set up for the hearings of notified

faculty members at UTMB consisted of three memberseach, drawn from a larger panel of nine appointed bythe provost and again, as was the case with the initialreview body, consisting of persons recommended bydepartment chairs. No faculty member from thedepartment of the released faculty member was per-mitted to serve on that person’s panel. As mentioned inSection I of this report, the University of Texas Systemappointed a staff attorney, Dan Sharphorn, to serve asadviser to the committee on procedural issues but notas an advocate for either side; he did not pose ques-tions to either side during the hearings. On occasion,when he was unavailable, the system provided a sub-stitute attorney. The faculty member making theappeal was permitted to bring an advocate as a coun-terweight to the administration’s counsel; in theminority of cases where this option was not exercised,the administration refrained from providing its own


attorney as well. Hearings were closed to the publicunless the appellant requested that the hearing be open.The hearing of appeals began in March 2009 and

continued to the end of May. President Callender’s letters,recording his decision in each case after receiving thepanels’ recommendations, started going to appellants inlate April and continued into June. (One late case, de-layed, apparently, by miscommunication, was not settleduntil the end of August, as it happened in the appellant’sfavor.) The provost met with panels on a few occasionsto discuss only the question of the bona fide nature ofthe financial exigency declaration, but most of the timethe UTMB attorney represented the administration. Two hours were allocated initially for each hearing,

but representatives of the appeal panels stated that theycomplied whenever the appellant requested additionaltime. The appellant could challenge a particular mem-ber of the panel on the basis of conflict of interest, as didhappen in one case, but under the rule a panelist sat injudgment on his or her own fitness to serve. In one casethe professor claimed that the administration introducedtwo witnesses of whom she had not been previously in-formed. Like the initial panel recommending facultymembers for release, the appeal bodies received no doc-umentation in advance of the hearings. Although thepolicy was debated, the view that prevailed was thatindividual members of any panel could not all beassumed to have read to the same point in the materialprior to convening and that it was better to begin from acommon point and review the written material later. Norestrictions were placed on the amount of material sub-mitted, and in some cases the faculty member submittedextensive documentation in support of his or her posi-tion, including, for example, outcomes of previous pro-motion and tenure reviews or letters from colleaguesand external referees. According to representatives of thepanels, the notified faculty member and his or herdepartment head typically would highlight key exhibitsin their presentations and in many cases walk the hear-ing panel through the relevant documents in the courseof the proceeding. Panel members might review thesedocuments during the presentations and, if necessary,continue the review after the hearing closed. Some casesrequired extensive reading after the hearing, some didnot, and the results were reflected in the varying lengthof time that elapsed between the hearing and the reportto the president. It was difficult for the investigatingcommittee to establish, however, whether in every casethe appeal panel was able to absorb this material ortake it into consideration, especially since in some casesthe panel’s report is dated the same day that the hearing

itself was held.9 Panels were allowed up to thirty days tofile a report, but scheduling pressures doubtless madefor quicker disposition in many of the cases.The written reports of the appeal panels vary consid-

erably in detail. At one extreme, only the briefest sum-mary of the case, with no flavor of the committee’s rea-soning, was deemed sufficient; in other instances, thegive-and-take of the proceedings was described in con-siderable detail. At the first extreme, a panel may havefelt that the supporting exhibits, which went to the pres-ident along with the report, spoke for themselves. Mostof the reports are unanimous, though there is occasion-ally a dissenting view from one of the three panelists,usually disagreeing with the administration’s positionon the necessity of declaring a financial exigency.More than half of those who lost their appeals were

recommended by their respective panels for considera-tion for reinstatement should financial circumstanceswarrant. The language of such reports is both glowingand regretful. The term of art in such cases was that thefaculty member was “valuable but not essential,” andthe chair not infrequently described the decision as dif-ficult. This consideration doubtless weighed with theprovost when he told the investigating committee thatthere were no dismissals for cause. Nonetheless, theAssociation’s recommended policy is clear: if a facultymember’s appointment is terminated implicitly orexplicitly on the grounds of relative merit, howevermerit is measured, his or her release is in effect a dis-missal for cause, requiring a full due-process hearing inwhich the burden of proof is to be borne by the admin-istration. That burden-of-proof obligation, as has beenseen, is not recognized in Rule 31003, and the panels,like the appellants themselves, were specifically instruct-ed that the burden rested on the appellant. Favorablecomments on past performance may have been intend-ed to fulfill the letter of Rule 31003, Section 3.3, buttheir effect, especially when followed by the formula of“valuable but not essential,” suggests at best a cursoryreview and an attempt to soften the inevitable blow.

9. This point is important in one of the two cases dis-cussed in this section. Going only by the dating of thereports, the investigating committee noted eight cases inwhich the hearing committee dated its report on the sameday as the hearing, two in which the committee dated itsreport the next day. This is not to say, without access to theexhibits themselves (submitted to the investigating commit-tee only in those cases in which the faculty member hadapproached the Association for assistance), that all suchcases were equally complex.


The reports of the hearing panels were sent toPresident Callender as soon as they were finished. Aspreviously indicated, the president had access to all theexhibits as well as the panel’s report in each case, andhe told the investigating committee that for this reasonhe was not troubled by the variation in specificity in thereports, inasmuch as he could always check the findingsagainst the evidence. He did not believe it was necessaryto remand any of the reports for further considerationbut supported the recommendations of the particularhearing panel in all cases, including the three in whichthe panel upheld the appellant against the departmentchair. The procedures employed in two cases to implement

the statutory language are of particular interest. In thefirst of these, a tenured professor, who had been at UTMBfor seventeen years, submitted no fewer than eighty-sixexhibits prior to his hearing, including a forty-eight-page statement of grounds for his appeal, taking issuewith the decision to release him on the grounds both ofabsence of a bona fide financial exigency and of arbi-trary and unreasonable treatment. The bridge betweenhis argument on financial exigency and his claim to bethe victim of an arbitrary and unreasonable decisioninvolved allegations, among others, that the real reasonfor his release and others reflected conditions that hadexisted before Hurricane Ike and that, by delegating deci-sions to the chairs, the provost had effectively removedfinancial exigency as a rationale, since such a conditionimplied a campuswide, not a departmental, approach tothe problem. It is impossible to know whether the hear-ing panel took account of these arguments in its owndiscussion, but the record of the hearing, and the com-mittee’s recommendations, do not reflect any discussiontesting their rebuttability. Since the professor’s exhibits(in accordance with hearing panel practice) could havebeen reviewed by the panel only on the day of the hear-ing or thereafter, not even the lengthy appeal statementcould have played much of a role in the hearing panel’sdecision, since the professor appeared before the panelon March 31 and the panel report is dated April 1.In connection with this first case, the investigating

committee observes more broadly that Section 3.8(d)(1)of Rule 31003 is notable for confining the discussion offinancial exigency to whether it was the reason for thetermination of academic positions, for one can hardlyimagine how the faculty member could be expected torebut the claims in the administration’s four-paragraphNovember 2008 declaration. If such a rebuttal of thefacts were possible, it would presumably nullify all find-ings to the contrary in other cases. A more appropriate

standard would seem to have been whether financialexigency was the real reason for the decision to termi-nate the appointment of the person who is specificallylodging the appeal, or whether, conceding the reality ofthe financial crisis, that crisis was of such magnitude asto justify the draconian measures employed instead ofallowing for a review of cuts through other means—again an argument that it is difficult for an appellant tomount, though several tried. As has previously beenstated, an occasional panelist dissented from the admin-istration’s description of UTMB’s financial circumstances,but the majority of panelists (at least two in each hear-ing) seem to have regarded the four-paragraph declara-tion as presumptively valid and that declaration is notcouched in any terms that invite faculty dissent, absentan examination of the books that was hardly practica-ble under the circumstances of the appeals.In the other case, a tenured faculty member of twenty-

three years’ service wrote to the president on December15, requesting a hearing. As part of that request, sheasked for “the specific criteria used by university andSchool of Medicine management” in recommendingcertain terminations and not others, as well as “all rele-vant information and documentation (e.g., externalfunding, evaluations, etc.) used to assess my perform-ance and that of my colleagues against these criteria”and “any correspondence or other records (e.g., e-mails,letters, memoranda, or notes) from or to my departmentchair that discuss either the possibility of terminating meor my actual termination.” The provost, who respondedto all such appeals on behalf of the president, wrote tothe faculty member quoting the language of Rule 3.7(“upon the request of the person, [that person] shall begiven any written data or information relied upon inarriving at such decision [to reduce academic posi-tions]”) and responded, “In your initial appeal letter,you have requested a number of categories of docu-ments that touch on the decision to terminate your par-ticular position, as opposed to the general decision toreduce academic positions. For that reason, we do notconsider your request for documents to encompass arequest for the information provided in Section 3.7 ofRule 31003.” Nonetheless, he went on to add that theremight be documents responsive to the request and thathis office was in the process of gathering them. However much the provost may have intended to mit-

igate its effect, the language of Rule 31003 puts theappellant at an inherent disadvantage in the process.Read literally, it makes it impossible for him or her topresent evidence of impermissible consideration (otherthan arbitrary and unreasonable treatment vis-à-vis


another person or persons in the department), yet theinformation requested by the appellant in this case wasprecisely of the sort that one would expect to be forth-coming when a tenured faculty member is being dis-missed while others, tenured or nontenured, are beingretained. To repeat: A judgment on the relative merits offaculty members under these conditions constitutes adismissal for cause, because it undoes a previous decisionto confer tenure based on merit. The professor’s infor-mation request, properly, would have placed the burdenof proof on the administration, not the faculty member,in coming before a hearing body. While the investigat-ing committee notes that the administration, as well asthe hearing panels, interpreted the language of the ruleliberally, and that the hearing panels seem not to haveexcluded any material that the appellant wished tobring forward, the rule lent itself to restricting narrowlythe ability of faculty members to defend themselves.

3. Assessing CriteriaTo recapitulate some important facts: According to Rule31003, Section 3.3, decisions affecting the continuanceof a faculty member under conditions of financial exi-gency should begin with a review of “the academicqualifications and talents of holders of all academicpositions in those degree programs or teaching special-ties, the needs of the program they serve, past academicperformance, and the potential for future contributionsto the development of the institution.” Tenure status isto be considered only pursuant to Section 3.4, when, ashas been stated, two or more faculty members are equal-ly qualified and capable of performing a particularteaching role, in which case the faculty member ormembers having tenure are to be given preference overnontenured faculty. If the issue is between two non-tenured or two tenured faculty members, on the otherhand, “consideration will be given to other documentedneeds of the institution.” The language of Rule 31003, applicable as it is to all

institutions in the University of Texas System and notconfined to medical schools, tracks a fairly traditionalview of the role of a teacher-scholar-citizen in a com-prehensive university. In medical schools, where somefaculty members may have virtually no teachingrespon-sibilities, or may be involved almost exclusivelyin research and graduate education or in patient care,the distinction among the traditional roles is not alwaysevident. Teaching itself may take a number of forms, forexample, taking residents on the rounds at the hospital.Both clinicians and basic scientists, however, at UTMBas well as at many other medical schools, are expected

to recover a significant portion of their salary eitherthrough external funding or through patient income.Under such conditions, a faculty member’s “potentialfor future contributions to the development of the insti-tution” is in danger of being defined entirely by thefinancial bottom line. Yet most of the appeals reviewedby the investigating committee were based precisely onthe faculty member’s contribution to many aspects ofteaching, research, and, where applicable, clinical duties,as perceived by both the faculty member and his or hercolleagues (frequently in allied departments), thus beingfully in line with the traditional formula of teaching,research, and (to a lesser degree) service. This line ofargument suggests that a termination of appointmentdriven by financial considerations alone could not onlyharm the affected faculty member but also deprive theinstitution of needed and useful services. The investigat-ing committee heard several complaints that ongoingacademic programs had been compromised, if not jeop-ardized, by a particular termination, and the hearingrecords show some attention to the question. The inves-tigating committee cannot evaluate the effects of vari-ous faculty layoffs on the curriculum or its centrality, amatter more suitable for inquiry by an accreditingbody, but the point to be made is that the allegations,though often noted by the appeal panels, seldom seemto have weighed much in a final determination of theappellant’s case.On the basis of the appeals the investigating commit-

tee surveyed, the termination of faculty appointments,accompanied with however profuse a show of gratitudefor past performance and regret at the necessity of ter-mination, seems in most instances to have been drivenby bottom-line considerations. Certainly much of thelanguage in the reports of the appeal panels indicatesvery little basis for the terminations other than a purelyeconomic calculus, namely, to what extent the facultymember was recovering his or her stipulated salarythrough external grants, along with a nonspecificreference to departmental needs. “External funding,along with acknowledgment by awards for other contri-butions to the university” figure as criteria in one fairlytypical case. In another instance, involving a tenuredfaculty member, “the department only considered cur-rent funding, and not historical funding for all faculty,”which appears to violate section 3.3 of Rule 31003calling for a consideration of “past academic perform-ance.” In yet another case, according to the appealpanel’s characterization of the state of affairs, “the de-partment decided to . . . categorize faculty as A, B, or Cbased on the percentage of salary support from


governing rules, had no playbook with which to handlethis kind of outburst, unheralded, according to the fac-ulty member, in any of his annual evaluations, and noway of recommending, even had it so desired, that thecase be reheard as a dismissal for cause. The incidentillustrates the danger that, under the proceedings fol-lowing the declaration of financial exigency, it was alltoo possible for that declaration to serve as a cloak for achair who wished to settle old scores.10

In fairness to the appeal panels, it should be saidthat they were as constrained by the narrow grounds onwhich they could hear cases as were the appellants whowere bringing them. An appeals body is as dependent onthe administration’s disclosure of sometimes complex,diffuse, and abstruse documentation as is the facultymember attempting to make the case. It is also true thatin all cases the panels took evidence of the appellant’soverall record of service to the institution, but what theydo not appear to have done, on the whole, was to pressthe department chair to furnish evidence that she or hehad weighed all relevant factors for faculty evaluationas required by Rule 31003, with an eye to considering inparticular whether that total performance might out-weigh a sometimes momentary hiatus in external fund-ing. One particular metric might have been employed bya department chair in a given case and stood unchal-lenged as sufficient reason for dismissing an entire recordof service, however valuable (and perhaps in sum evenessential) it might have been to the institution. And theoutcome of some of the hearings, and the bases on whichhearing panels made decisions, are at best puzzling.For example, in two cases where the reports of the

review body are unusually full, the panels reached con-clusions at odds with the record established in the hear-ing. An associate professor in his sixth year of service,whose tenure status is not identified in the report, wasplaced on the “B” list because of “past performance andlack of sustained success in obtaining extramuralresearch support,” although throughout most of his

extramural funding” alone. When this formula wasapplied to one tenured faculty member of seventeenyears’ standing, the salary was supported at an estimated15–18 percent level at the time of the decision to releasehim, but the department chair claimed that the admin-istration did not permit him to change the recommen-dation when the faculty member, receiving a new three-year grant after the hurricane, raised the level of salarysupport to an estimated 34.75 percent, slightly above thedepartmentally prescribed minimum. In the two citeddepartments where the ax fell heavily on the basic scien-tists, the rationale was the necessity to shift to a primari-ly clinical orientation in order to improve revenuestreams, although there is no record of any prior depart-mental faculty discussion, either before or after thehurricane, of such a significant shift in programmaticemphasis. On the clinical side, other constraints ob-tained: thus, of one professor of eighteen years’ experi-ence, it was written that “the collections were belowwhat it cost the department for her services.”While some chairs rested their cases on bottom-line

considerations, some did adduce other factors, thoughthese carried varying degrees of conviction and may atmost have been makeweights in the final decision. Atenured professor was released because of “low percentagesupport from extramural funding. In addition, he wasnot picked by other students as mentor.” Another tenuredfaculty member complained that, as a result of a recordof whistle-blowing some years before, he had become atarget of convenience and that false and inaccurate in-formation had become part of his personnel file. There-fore, by referring simply to financially driven criteria,the chair was effectively insulated from any charge ofunreasonable or arbitrary behavior. Yet another tenuredfaculty member was retained over a second tenured fac-ulty member in the same department allegedly becauseof his “stronger leadership roles in the department” andthe fact that he had had eight best all-around teacherawards compared to the dismissed faculty member’s oneaward. The reference to a “leadership role in the depart-ment” may have been a tacit response to the fact thatthe dismissed faculty member’s service to the institutiontook the form of leadership in the faculty senate. Thedepartment chair, having given fundamentally genericreasons for the termination, launched into a series ofattacks at the hearing, for example, that the facultymember “usually arrives late for work and is not astrategic division leader” unlike the senior colleague towhom he was compared. The chair alleged that the fac-ulty member in question “procrastinates, delegates, andseldom meets deadlines.” The appeal panel, under the

10. In their response to the prepublication draft of thisreport, Dr. Shine and Mr. Burgdorf stated, “The appeal panelwas not limited in what it could recommend. Had the evi-dence warranted it, the panel could have recommended thatthe faculty member be rehired, or that the appeal hearingbe retained, that the matter be reviewed, or that the appealhearing be re-heard.” The investigating committee discernsno evidence that the panels were instructed to reach anydetermination other than support or disapproval of the orig-inal termination decision. If such advice was ever offeredorally by counsel, the written records do not show it.


these reports, the sources and level of her research fund-ing did not figure at all, though it was undoubtedly rel-evant that she had no recent federal funding. Her situa-tion was complicated by long-standing difficulties withher department chair, who had attempted to remove herfrom her laboratory following the hurricane and onfour previous occasions for lack of research productivity.The stated criteria for retention of a faculty memberadvanced by this chair were “level of external peer-reviewed federal funding; retention of ‘super-teachers’where possible, and retention of others who were deemedcritical to the mission of the university or department.”As it developed in this case and several others from thesame department, this last category was deemed toinclude new nontenured appointees, who in this depart-ment were sheltered from the reduction-in-force direc-tive. Although there is no definition of “new,” elsewherein the panel report it seems most likely to refer to thosewith an agreed-upon period of startup funding, not nec-essarily a person in his or her very first year of service.As we have seen, Regents’ Rule 31003, Section 3.4 says

that when tenured and nontenured faculty are underconsideration for termination, tenured faculty should beretained in preference over nontenured faculty, includingnew appointments, only in circumstances in which thequalifications of two individuals, one from each group,are more or less comparable. This de minimis view ofthe protection of tenure would therefore indicate that nosuch determination is required when nontenured facultymembers are brought in for teaching and research spe-cialties not currently represented by other faculty. Noth-ing in the rule speaks to the blanket assumption that allnew appointees must be protected from a reduction inforce, and the hearing panel was clearly troubled bythis. “The committee recognizes the importance of auniversity standing behind its commitments to newrecruits, but even more importantly, the university mustkeep its commitments to tenured faculty.” Yet in spite ofthis apparently unanimous statement, only one of thethree panelists believed that the termination decisionwas arbitrary, because it required the application of aformula not in conformity with the regents’ rule.(AAUP-recommended standards to be applied in such acase are considered in Section IV.A below.)This faculty member set forth several other defenses

of her case, pointing to her breadth of teaching abilities,objecting that despite the department’s centrality to theteaching mission at UTMB it had sustained a dispropor-tionate share of cuts in academic positions, and assert-ing that she had not been fairly evaluated under themultiform standard of Rule 31003. Here the panel

career the professor had achieved a level of funding atapproximately 50–55 percent of his salary prior toHurricane Ike and had published twelve papers the pre-vious year. The chair also stated that, after arriving tohead the department the previous year, he had devel-oped a scale involving several areas that “served as ametric for future productivity and benchmark compar-isons” including “an emphasis on discovery and trans-lational research in addition to teaching and UTMBleadership and citizenship duties” and that the facultymember had been considered according to these stan-dards. The panel, however, responded that “the details ofany implementation of these goals by the department orrealignment of an individual’s performance expecta-tions to meet these points are not evident in the review.Moreover, based on comments made by [the appellant],it is uncertain of his level of awareness of this documentor the potential for it to be utilized in the evaluation ofhis performance.” When the chair stated that the appel-lant “did not contribute substantially to any of the fivefocal point goals for the department,” the panelresponded, “However, only five months had elapsedbetween the establishment of the five focal points andHurricane Ike. It is unclear if a faculty member’s careermay be redirected to advance these points to facilitatedepartmental growth and realignment in that time-frame or if [the professor] received counseling specificto deficits in this new process.” The chair then com-pared the appellant to several other retained faculty interms of teaching skills and contribution to the depart-ment’s teaching goals. Thus, in the course of the hear-ing, the stated reasons seem to have gravitated from aone-year hiatus in external support to a failure to meetdepartmental goals (by standards only recently articu-lated) and especially to teaching considerations. Thepanel again disagreed, stating that the faculty member’sresearch, translational interactions, outreach, andteaching, contrary to the chair’s testimony, did “meetseveral of the focal points.” Despite these warning signs,however, and its own (repeatedly stated) divergencesfrom the chair, the panel felt that the decision to termi-nate this faculty member’s appointment was “reason-able and not arbitrary given these financial constraintsand the immediate needs of the department under thenew circumstances.”Another example of an apparent disconnection be-

tween the nature of a panel’s reasoning and the disposi-tion of a case involved a previously mentioned professorof more than twenty years’ service with a sustained re-cord of contributions to the teaching of required coursesand programmatic development. Almost uniquely among


reiterated a pattern noticeable in many other such cases:praise of the appellant’s multiple contributions, accept-ance (by a 2–1 vote) of the chair’s basis for termination,and a concluding suggestion that the university reviewher role in teaching and the effect of her departure onone curriculum in particular to “determine if there is amechanism for her retention.”One report did indeed find that a senior professor of

seventeen years’ standing had been wrongly notified oftermination because two nontenured assistant professorswith no record of funding, productivity, or “educationalor service commitment” were retained in his stead. Theappeal panel found for the professor, and the presidentupheld the panel and reinstated him.Overall, the pattern that the hearings indicate is that

many of the affected faculty members who were praisedfor their services to UTMB were nonetheless released onthe grounds that either their external research fundingor their clinical revenue stream did not meet the univer-sity’s needs in the wake of the hurricane. This action doesnot constitute a full review or adequate cause under eventhe impoverished standards of Rule 31003. The problemmay perhaps be most clearly dramatized by comparingthis rapid-fire release of tenured faculty with the extend-ed care and documentation that normally go into thedecision of whether or not to grant tenure to a facultymember in the first place. Adherence to a single standardas “adequate cause” seems to have been premised, inall too many cases, on an avoidance of any meaningfulassessment of the sort that would determine whetherother considerations might be sufficient to outweighthat single economically based metric.11

D. THE TFA LAWSUIT AND POTENTIAL REINSTATEMENTS

In a November 19, 2008, letter to the chair of the UT

System Board of Regents, Texas Daily Newspaper Associa-tion president Gary Borders argued that the board hadimproperly discussed and authorized the reduction inforce at UTMB in closed executive session, in violation ofthe Texas Open Meetings Act. He and other critics chargedthat the public had a right to know what alternatives toappointment terminations were considered and whyemergency funding for faculty was not available from UTSystem and legislative sources. On December 2, as facul-ty members were preparing to appeal their appointmentterminations to President Callender, the TFA and threeindividuals filed suit against the board, charging viola-tion of the Open Meetings Act and seeking the reinstate-ment of all those laid off as part of the reduction in force.The lawsuit was settled out of court five months later,

in April 2009. Under its terms, all affected faculty mem-bers were to remain on an official “Re-Employment List”for thirty-six months from the date of termination. Aspositions were restored, they would be advertised onUTMB’s Web site, and released faculty on the list wouldhave up to twenty business days from the date of the jobposting to express an interest and to be interviewed. Theformer faculty member would be appointed if qualifiedand if there was not another person better qualified.Being deemed qualified, according to the TFA news re-lease, was based on such factors as experience and

11. In their response to a prepublication draft of thisreport, Dr. Shine and Mr. Burgdorf stated the following:

[M]any of the decisions to eliminate programs and posi-tions were based on concerns about the ability of UTMBto continue to deliver high quality health care to itspatients, which is a mandate from the people of Texasand our faculty’s ethical obligation. There was no “singleeconomically based metric” as the report charges. Patientcare was a critical part of the metric. But it is indeed truethat economics played a significant role in dealing withthe “financial exigency.” It would not be a “financial”exigency if economics were not part of the problem. Andit is further true that academic health centers, in particularUTMB, are dependent on “clinical revenue to support therest of its missions.” Indeed, over 60% of UTMB income

arose from the clinical programs and Hurricane Ike forcedthe closing of the hospital until January of 2009, and it wasreopened at less than one-half of the original capacity. . . .

The AAUP’s rules are designed to protect against the“serious distortion” of academic programs, but this aloneis not possible for an academic health institution. Theseare hybrid organizations that must not only be concernedwith the “serious distortion” of academic programs, theymust also be concerned with the quality of patient care.Indeed, when it comes to patient care, their responsibilityis not just to avoid a “serious distortion,” their responsi-bility to their patients is to avoid providing anything butthe very highest health care possible. Thus, while theAAUP may want an academic institution to favor a tenuredfaculty member unless to do otherwise would be a “seri-ous distortion” of the academic program, that cannot bethe standard by which an academic health institutionmakes decisions about patient care. To do anything butkeep the most competent doctor in terms of patient carewould be a “serious distortion” of their healthcare mis-sion and their duty to their patients. And, yes, it is truethat a health care institution, at least one like UTMB,must be able to deliver that health care in a “cost-effective” manner if it is to survive.


education, and UTMB was barred from using thecomparative cost of the appointment of a former facultymember, as over and against a newer faculty member,as a reason for denying such appointment. Any releasedperson not reinstated under these terms could requestand receive binding arbitration under an independentretired judge in Houston. The burden of proof for show-ing an inadequate basis for continued denial of employ-ment would continue to rest on the complainant.American Arbitration Association rules would apply, andthe decision of the arbitrator would be final. The settle-ment did not require a general reassessment of the re-duction in force, nor did it reinstate any faculty membersto their previous positions.

IV. IssuesSummarized here are what appear to the investigatingcommittee to be the central issues of concern raised bythe actions taken by the administration to effect thereduction in force at UTMB.

A. THE BASIS FOR A DECLARATION OF FINANCIAL EXIGENCYAssociation-supported policy in cases of financial exi-gency derives from the rather spare observation in the1940 Statement of Principles on Academic Freedomand Tenure: “Termination of a continuous [tenured]appointment because of financial exigency should bedemonstrably bona fide.” The statement is amplified inthe Association’s Recommended InstitutionalRegulations on Academic Freedom and Tenure(RIR), first formulated in 1957 and subsequently revisedon several occasions. Regulation 4c(1) of the RIR statesthat such terminations may occur “under extraordinarycircumstances because of a demonstrably bona fidefinancial exigency, i.e., an imminent financial crisisthat threatens the survival of the institution as a wholeand that cannot be alleviated by less drastic means.”Regents’ Rule 31003 does not provide any definition

of financial exigency, although a definition does come inRule 30601, pertaining to staff, in which it is describedas “a state in which financial demands call for budgetcuts.” This falls far short of the Association’s standard ofinstitutional survival. Budget cuts do not a financialexigency make; if they did, hardly any institution ofhigher education in the country aside from a few excep-tionally well-endowed colleges and universities couldclaim to be exempt from a condition of financial exi-gency. UTMB administrators with whom the investigat-ing committee met stated that, in the wake of HurricaneIke, the School of Medicine seemed to be facing a crisisof such magnitude that indeed its survival was at stake.

Calculations were that it would be unable to meet itspayroll by March 2009; when the board declared finan-cial exigency it was not known, they stated, that the statewould advance money sufficient to meet that cost, andthe provost said that at the time he issued the notices oftermination for May and August respectively, he was notcertain that the affected faculty members would receivetheir salary for the entire time. Under these conditions,the administration believed, the viability if not surviv-ability of UTMB was at issue in the very near term. Of course, it was not the institution as a whole but a

particular (albeit surely the central) part of it in whichviability was in question, and no steps were taken toascertain whether losses in the medical school might bemet at least in part by cuts in other programs. Theprovost indicated to the investigating committee thatthe nursing program could not be cut, and very few sav-ings were available through reduction in other colleges.There seems to be no question that the administrationand many members of the faculty, even a few of the fac-ulty who themselves received notice of termination dur-ing this period, believed that the lack of hospital andclinical services meant that the entire institution was ata very high risk of bankruptcy and full closure if radicalsteps were not taken. But even faculty members sympa-thetic to the administration’s case did not agree on howbudget cuts should be made or that the way chosen wasthe best way.Questions about whether the crisis was demonstrably

bona fide had been raised both inside and outside UTMBearly on. Critics made much of the fact that a “SpecialComment” issued by Moody’s Investors Service in October2008 on the post-Ike situation found that events atGalveston did not have a serious effect on the overallUniversity of Texas System of which UTMB was only asmall part: “Moody’s believes the costs to repair UTMBcan be absorbed by the System at its current ratingslevels given its total financial resources. The Systemwill, however, need to tap into its operating reserves tomanage the cash flow timing of clean-up efforts andreimbursements from external sources.” Again, criticsexpressed puzzlement at the apparent reluctance of theadministration and system in the fall and early winterto pursue emergency state support more vigorously, andthey argued that this showed reluctance to maintain aGalveston presence at pre-hurricane levels and a desireto transfer many of UTMB’s functions to a mainlandlocation. It was also pointed out that UTMB had recent-ly purchased land on the mainland for expansion.In response, system spokespersons, both in their

correspondence with the Association’s staff and in


subsequent discussions with the Association’s investigat-ing committee, argued that under existing regulationsfunds cannot be transferred within the system and thateach campus in that system rests on its own bottom.These spokespersons reiterated that FEMA and insurancefunds could not be drawn upon to maintain facultystrength and that it was not the policy of the Sealy andSmith Foundation, which for years had been a generousbenefactor of the hospital, to support personnel costs.Two funds often cited by faculty and the TFA, thePermanent University Fund and the Available UniversityFunds, had already been cited in the financial-exigencydeclaration as not being available for operations exceptin specifically authorized cases, and only the Universityof Texas at Austin could tap these funds for that pur-pose. System representatives also vigorously disputedallegations that they and the UTMB administration hadbeen hesitant, remiss, or laggard in pressing for addi-tional state funding. They stressed that the Texas legis-lature meets only every other year and was not in ses-sion in fall 2008, during which elections were held forthe session to begin in January 2009. They characterizedthe outgoing speaker of the House as generally unrecep-tive to UTMB concerns and the incoming speaker asone who would be more sympathetic when he took theleadership reins. Much of the controversy over the intentions of the

UTMB administration and the UT System at the time ofthe hurricane, or even over events antedating the hurri-cane, by now involves dead issues, and the investigatingcommittee finds no reason to question the very realfinancial difficulties that UTMB faced in the wake ofHurricane Ike. It does question the speed of the process,one that might be described as “fire in haste and rehireat leisure.” The investigating committee believes that,had the administration reached out more actively toengage the faculty at the very outset and had the reduc-tion in force (if a proven necessity) been carried outwith more transparency and under appropriate due-process protections, at least some of the criticism mighthave been muted early on. As it was, much of the criti-cism was reignited by the posting of new positions with-in a matter of a few months, which for some facultymembers called into question the bona fides of the orig-inal declaration of financial exigency.

B. THE ROLE OF THE FACULTYThe Association’s view of the role of faculty governancein colleges and universities derives from the 1966Statement on Government of Colleges and Universities,jointly formulated by the AAUP, the American Council

on Education, and the Association of Governing Boardsof Universities and Colleges.12 Under this document, fac-ulty are said to have “primary responsibility for suchfundamental areas as curriculum, subject matter andmethods of instruction, research, faculty status, andthose aspects of student life which relate to the educa-tional process. On these matters the power of review orfinal decision lodged in the governing board or delegat-ed by it to the president should be exercised adverselyonly in exceptional circumstances, and for reasonscommunicated to the faculty.” Even after, in the event ofan adverse decision, the faculty should have the right torequest further consideration and to transmit its viewsto the administration and governing board. TheStatement on Government also acknowledges that“budgets, personnel limitations, the time element, andpolicies of other groups, bodies, and agencies havingjurisdiction over the institution may set limits to real-ization of faculty advice.”With respect to matters of faculty status, such as ap-

pointment, reappointment or nonreappointment, promo-tion, the award of tenure, and dismissal, the Statementon Government further argues:

The primary responsibility of the faculty for suchmatters is based upon the fact that its judgment iscentral to general educational policy.Furthermore, scholars in a particular field oractivity have the chief competence for judging thework of their colleagues; in such competence it isimplicit that responsibility exists for both adverseand favorable judgments. Likewise there is themore general competence of experienced facultypersonnel committees having a broader charge.Determinations in these matters should first be byfaculty action through established procedures,reviewed by the chief academic officers with theconcurrence of the board. The governing boardand president should, on questions of faculty sta-tus, as in other matters where the faculty has pri-mary responsibility, concur with the faculty judg-ment except in rare instances and for compellingreasons which should be stated in detail. In his discussion with the investigating committee,

the provost asked if the Association did not believe, ineffect, that in circumstances like those surroundingHurricane Ike, a reduction in force should be “facultydriven.” The question is a fair one, and requires a

12. The AAUP adopted the 1966 Statement as its officialpolicy, and the other two organizations commended it to theattention of their respective memberships.


nuanced answer. The Statement on Government stress-es the idea of shared governance, in which faculty, pres-ident (understood to include the administrative officerswho report to him or her), and governing board all par-ticipate according to their particular areas of expertiseand responsibility. “Primary responsibility” in this con-text does not refer to unbridled power, whether exertedby faculty or administration, but to a deference to pri-mary competencies as appropriate to the particular areaof responsibility in question. To be sure, a faculty bodythat simply refuses to do its duty in responding to afinancial crisis requiring a reduction in force, or whichdodges hard questions, has no claim to deference if itabdicates the field it ought properly to occupy. But byevery means the investigating committee could deter-mine, there appears to have been a signal willingness ofthe faculty as a whole, and particularly an appropriatebody such as the faculty senate, which could have con-stituted an independent committee not appointed by theadministration, to offer advice prior to the implementa-tion of a reduction in force and thus share in a difficultprocess. Of course, in one sense it could be argued that what

happened at UTMB had all the appearance, and muchof the reality, of a “faculty-driven” process, beginningwith department chairs in their status as faculty col-leagues, continuing with the faculty review committee,and concluding with the faculty appeal panels; further-more, as has been said, President Callender was deferen-tial to such faculty advice in all cases. But the legitima-cy of the process was undercut by the perception thatchairs owe their primary allegiance to the administra-tion. Thus, in being chair driven, appointments to theinitial review committee and the hearing panels wereall made upon the recommendation of the chairs whosevery termination recommendations were to be underreview; the process in this sense was far from “facultydriven.”13 The point is particularly important becausewhat is called a “chair” at Galveston more nearlyresembles what would be called a “head” at many, if notmost, medical schools. Chairs often draw higher salariesthan the dean; they may double as heads of the related

hospital departments. Certainly the process employed atUTMB allowed for the overruling of chairs’ recommen-dations. One system spokesperson pointed to the relativenumber of appeals compared to the number of termina-tions, and the disposition of those appeals, as evidencethat “the system worked.” A more skeptical observermight respond that the system worked as it was intendedto work—within the confines of a process in which thesame officers intimately involved in the reduction offorce also took a significant role in shaping the reviewprocess, and under a policy that severely narrowed thescope of appeals and displaced the burden of proof inall cases to the faculty member proposed for termina-tion of appointment, whether tenured or nontenured. After defining financial exigency, RIR 4c(1) continues

with three paragraphs describing the appropriate role ofthe faculty of the institution. These follow in order, withcomments on each:

As a first step, there should be a faculty body thatparticipates in the decision that a condition offinancial exigency exists or is imminent, and thatall feasible alternatives to termination of appoint-ments have been pursued.Initial discussions between the board of regents and

the administration of UTMB, with the ensuing decisionto issue a declaration of financial exigency, took placewith no faculty involvement. While system representa-tives have indicated that such options as early retire-ment were also considered, the investigating commit-tee has no way of evaluating to what extent theseoptions figured in discussions that, by their nature, areprivate and confidential. The administration notedthat furloughs are forbidden under Texas law, and theidea of an across-the-board salary reduction wasrejected on the grounds that UTMB would have beenlikely to lose some of its best professors. Faculty mem-bers who spoke to the investigating committee arguedthat, as it was, some of the institution’s best faculty leftanyway, while the then chair of the senate reportedthat a number of professors who were retainedexpressed to him their willingness to share the pain inthe form of a salary cut. Department chairs with highsalaries and no current research income seem not tohave volunteered, or to have been asked, to return aportion of their stipends. The investigating committeedoes not here insist that the outcome would have nec-essarily been different if such measures had beentaken; it merely registers the fact that the door was notheld open to the faculty, which, through public com-munications and in the forum provided by the facultysenate, was presented with a fait accompli.

13. Moreover, the initial review panel included a numberof persons whose role at UTMB was seen as primarilyadministrative. These distinctions are sometimes hard tomake in a medical school, where there may be considerablefluidity in the nature of duties assigned to particularappointments, and the investigating committee has insuffi-cient data to conclude on what side of the line any particu-lar such individuals might be said finally to fall.


RIR 4c(1) continues:Judgments determining where within the overallacademic program termination of appointmentsmay occur involve considerations of educationalpolicy, including affirmative action, as well as offaculty status, and should therefore be the pri-mary responsibility of the faculty or of an appro-priate faculty body. The faculty or an appropriatefaculty body should also exercise primary respon-sibility in determining the criteria for identifyingthe individuals whose appointments are to be ter-minated. These criteria may appropriately includeconsiderations of length of service.

The responsibility for identifying individualswhose appointments are to be terminated shouldbe committed to a person or group designated orapproved by the faculty. The allocation of thisresponsibility may vary according to the size andcharacter of the institution, the extent of the ter-minations to be made, or other considerations offairness in judgment. A striking factor of the termination process at the

UTMB School of Medicine was that, while the hearingpanels received testimony on the value of particularappellants to one or more academic programs withinthe individual’s own or “adjacent” departments, thefuture of academic programs as a matter of education-al policy seems to have been an afterthought ratherthan an initiating principle in terminations. No facul-ty body responsible to the institution as a whole wasasked to consider academic policy in advance of theterminations, which could then be carried out with aneye toward compliance with whatever shifts in pro-grammatic emphasis might have been determined tobe necessary under impending fiscal constraints. Thismeant that department chairs had virtual autonomyin their decisions, checked only by the initial reviewcommittee named by the administration in consulta-tion with those chairs and ultimately, of course, by theappeal panels themselves.

C. CONSIDERATIONS OF ACADEMIC DUE PROCESSThe investigating committee here addresses those issuesspecifically related to the affordance of academic dueprocess.

1. The HearingsRIR 4c(2) stipulates that, if the administration hasissued notice of termination of appointment to a facultymember on grounds of financial exigency, the facultymember has the right to a full hearing before a faculty

committee. “The hearing need not conform in allrespects with a proceeding conducted pursuant toRegulation 5 [governing dismissals for cause], but theessentials of an on-the-record adjudicative hearing willbe observed.” The investigating committee believes that,setting aside the question of how the hearing panelswere formed, the UTMB appeals process did offer suchessentials in the case of some appeals, while in others itdid not. This same Association-recommended regulation con-

tinues by referring to several issues that the hearingmay address: (i) The existence and extent of the condition of

financial exigency. The burden of proof willrest on the administration to prove the exis-tence and extent of the condition. The findingsof a faculty committee in a previous proceedinginvolving the same issue may be introduced.

(ii) The validity of the educational judgments andthe criteria for identification for termination;but the recommendations of a faculty body onthese matters will be considered presumptivelyvalid.

(iii) Whether the criteria are being properly appliedin the individual case.

In the absence of input from faculty peers, the hear-ing panels apparently considered the administration’sdeclaration of financial exigency to be presumptivelyvalid, the burden of proof being on the faculty memberto overturn it. With respect to (ii), a hearing panel, con-fronted with this language, could presumably have arguedthat it was proceeding on the grounds that the recom-mendations of the initial review committee were likewisepresumptively valid. The third question is repeatedlyargued in the hearing panel reports, with the panel find-ings generally being on the side of the department chair.

2. Post-Hearing Considerations

a. The Criterion of “Serious Distortion” Subsections 3 through 6 of RIR 4c speak to the obliga-tions of an institution to faculty members whoseappointments are terminated in circumstances offinancial exigency. Subsection 3 stipulates that anadministration “will not at the same time make newappointments except in extraordinary circumstanceswhere a serious distortion in the academic programwould otherwise result” and that the appointment of afaculty member with tenure will not be terminated infavor of retaining a faculty member without tenureexcept under the same circumstances—when a


“serious distortion” in the program would occur other-wise. By contrast, Rule 31003, as we have seen, essen-tially puts tenured and nontenured faculty on an equalfooting except as regards a position for which both ofthem are “equally qualified and capable,” in whichcase the palm goes to the tenured faculty member. Thegoverning criterion of the RIR, “a serious distortion ofthe academic program,” does not figure in Rule 31003.The rule rather obviously does not bar the appoint-ment of new untenured faculty members if they are ina developing field of interest or emphasis not previous-ly represented by the existing (and immediately pre-existing) faculty. That move itself, however, may besaid to constitute a change of programmatic emphasis,or the addition of a new subfield, requiring an anteriorjudgment of programmatic development that shouldbe made by the department corporately and clearlydemarcated for planning purposes. Otherwise, therelease of tenured professors and recruitment of newfaculty members becomes a back-door attempt toreconfigure a department more in line with someoneelse’s idea of how it should look. By contrast, a “seri-ous distortion” results from a large vacuum in anexisting program that would result if a particular non-tenured faculty member, the only one in an importantspecialty, were to be released. If any department atUTMB’s School of Medicine, so far as this committeeknows, attempted to make that case, the committeehas no evidence of it. Surely the burden-of-proof stan-dard, in the first step of the process, ought to rest on adepartment chair who alleges that a serious distor-tion of the academic program will result if a non-tenured faculty member is not retained, even thougha tenured faculty member in the same department isreleased.

b. Alternative Placement Regulation 4c(4) of the RIR stipulates that, before ter-minating an appointment because of financial exi-gency, “the institution, with faculty participation, willmake every effort to place the faculty member con-cerned in another suitable position within the institu-tion.” The investigating committee is unaware of anyattempt to relocate an affected faculty member in theSchool of Medicine elsewhere in the school or inanother UTMB component. The committee wasinformed that the University of Texas System hadoffered assistance in placement of affected facultymembers elsewhere in the system but that facultymembers had not wanted their situation to be publi-cized in that way. The executive vice chancellor for

health affairs described this arrangement as a specialpolicy carved out as an exception to a UT System policy,which frowns on intercampus “raiding” of faculty.

c. Notice or Severance SalaryRIR 4c(5) refers to standards of notice or severancesalary set forth in Regulation 8 of the RIR, whichincorporates the Association’s Standards for Notice ofNonreappointment. The minimum time is one yearin the case of decisions reached after eighteen monthsof service on a renewable term appointment or if thefaculty member is tenured. As we have seen, non-tenure-track faculty received notice of just over sixmonths, and tenured faculty, together with probation-ers in their third year of service or beyond, receivednotice to take effect on August 31, approximately two-and-a-half months short of one year, based on thedate of the provost’s letter. In the case of these persons,therefore, notice fell short of Association-supportedstandards.It should be observed here that rather than a delib-

erative process that might have allowed the affectedfaculty member to present his or her case prior to theissuance of a notice of termination, those notices pre-ceded the hearing that a faculty member could requestafter receiving the notice. The fact of a prior decisionon termination, coupled with the placing of the bur-den of proof on the faculty member making theappeal, is almost inevitably to tilt the scales againstthe affected individual even before the hearing begins.The administration (and, equally, the system) took theposition that the decision had to be made, that it didnot want to prolong the uncertainty that the facultymember would otherwise feel (of the sort sometimesassociated with furloughs, had they been permissible),and that it did not want either to lull the faculty mem-ber with false anticipations or to fail to make it clearthat he or she was free to accept another positionelsewhere even before the expiration of his or herappointment at UTMB.

d. RecallThe sixth and last section of RIR 4c states, “In allcases of termination of appointment because of finan-cial exigency, the place of the faculty member con-cerned will not be filled by a replacement within aperiod of three years, unless the released faculty mem-ber has been offered reinstatement and a reasonabletime in which to accept or decline it.” The investigat-ing committee has already discussed this issue in con-nection with the TFA lawsuit. The lawsuit, as has been


noted, resulted in a one-year extension of Rule 31003’sstandard of two years to reapply, but neither that law-suit nor the rule affirmed the presumptive claim of thereleased faculty member to be offered reinstatementwithout being put in the position of having to applyfor an opening in competition with others who mightbe interested, and the settlement reached as a result ofthe TFA lawsuit did not affirm even the right of such afaculty member to be notified of the opening.The foregoing remarks require a note of caution.

The investigating committee has not been presentedwith a list of newly appointed faculty members andtheir specialties, and it does not take on itself the func-tion of determining how closely the credentials of areleased faculty member might match those of anincoming nontenured faculty member. Some vacanciesmay have resulted from the voluntary departure ofclinical faculty members who had to be replaced inorder to maintain or replenish critical revenue streamsand maintain appropriate levels of patient care. Thelarger problem, which the committee addresses in theconcluding pages of this report, derives from UTMB’sheavy dependence on clinical revenue to support therest of its mission. But again, here as elsewhere, theproblem is one of faculty perceptions, and perceptionsunder the highly charged circumstances of a massivereduction in force have a reality of their own. Moretransparency, not only at the time of the crisis but inthe succeeding months, would have been a boon to thistroubled campus.In January 2010, UTMB legal counsel Carolee King

forwarded to the investigating committee an enumera-tion (without names) of released faculty memberswho had been reinstated as a consequence of fiscaldevelopments since the previous spring. Thirty-two fac-ulty members had been recalled, of whom nine hadfiled appeals and twenty had not. An additional threehad appealed but their appeals had been withdrawn,whether or not because of their reinstatement was notindicated. These developments are to be welcomed,and the investigating committee hopes that additionaloffers of reinstatement can be made in the near future.

V. The Status of Tenure in the University ofTexas SystemIn the words of the 1940 Statement of Principles onAcademic Freedom and Tenure, “Tenure is a means tocertain ends; specifically: (1) freedom of teaching andresearch and of extramural activities, and (2) a suffi-cient degree of economic security to make the professionattractive to men and women of ability. Freedom and

economic security, hence, tenure, are indispensable tothe success of an institution in fulfilling its obligationsto its students and to society.”In the course of communications both with the

Association’s staff and with the investigating committeeduring its visit to Galveston, it was evident that somefaculty members saw events at UTMB as reflecting abroader assault on the principle of tenure itself. Thesesuspicions antedated Hurricane Ike. In August 2006, theTexas Faculty Association posted on its Web site an e-mail dated June 22 of that year from the then dean ofthe medical school to the then president, copied to aUTMB attorney, regarding reduction of tenured faculty.The attorney, the dean said, “has been working hardbut has not really identified any appropriate strategy forus to reduce tenured faculty except for reducing salary.We do not have early retirement option . . . or a manda-tory reduction to part-time. This will be a significantissue in keeping us from our $31m goal.” When askedabout this memorandum, the provost stated that he hadnot been serving in an administrative capacity when itwas written and that, although he could not speak for apredecessor, neither he nor anyone else was attemptingto “bust” tenure. System representatives have beenequally adamant on this point. The problem lies withRule 31003 in that the rule allows for the dismissal oftenured faculty, as well as probationary faculty prior tothe expiration of a term appointment, and places theburden of proof for retention upon the faculty memberto show why he or she should not be dismissed. ThusRule 31003 undermines the principle of tenure.If one of the purposes of tenure is, as the 1940

Statement declares, the provision of a certain amountof financial security to men and women in the profes-sion to make that profession attractive to them, then itseems obvious that if a tenured faculty member isplaced at risk when he or she is unable to secure salaryrecovery through external funding, or clinical revenueat a level deemed requisite to preserve his or her posi-tion, tenure itself has become hostage to forces beyondhis or her control, or indeed the control of the institu-tion. More subtly, it may also undercut the principle ofacademic freedom, for if, as was evident in one case, ascientist is heavily invested in “edgy” (that is, “cutting-edge”) research, and if the often fickle strategies of fed-eral funding agencies tend to favor high-demand ortrendy or “safe” projects, then the message is unmistak-able: If you want to preserve your job, go where thefunding is. When, by contrast with their peers in the lib-eral arts and sciences, basic scientists in a medicalschool are thus placed at risk—and UTMB is by no


means alone in what appears to be a growing trend inmedical schools—the risk is not only to freedom ofresearch and tenured status but ultimately also to thequality, if not the viability, of the academic program. Theloss is measured not merely in its cost to the individualwhose appointment has been terminated; it is measuredalso in its adverse impact on the students (as was evidentin a number of the appeals where students came forwardin support of the faculty member), on the institution, andindeed on the very future of the medical profession.It should be noted that the University of Texas System

rules governing dismissal for cause, set forth in Rule31008, share some of the weaknesses of Rule 31003.Although Rule 31008 does assert, importantly, the prin-ciple that the burden of proof rests on the institution toshow cause why a tenured faculty member, or a non-tenured faculty member before the expiration of a termappointment, should be dismissed, it also preservessome of the features of concern evident in the eventsexamined here: presidential appointment of a hearingtribunal “from a standing panel (pool) of members ofthe faculty,” though at least 50 percent of the nameschosen for service are to be selected by a procedureestablished by the appropriate faculty governance body.As with Rule 31003, the faculty member whose case isbeing heard may challenge one or another name, butthe person challenged is the sole arbiter as to whetherhe or she can serve.System representatives informed the investigating

committee at the time of its September 2009 visit toAustin that they were establishing a committee to reviewRule 31003 and that they would welcome AAUP input.The evidence suggests that a review of other regulationsaffecting faculty status would be in order and that thereason for such a review goes far beyond what the sys-tem representatives seemed to think was the main prob-lem with Rule 31003, namely, that it addressed termi-nation of specific programs rather than institution-wide(or in this case schoolwide) financial exigency. Theproblem, as this investigating committee has seen, goesdeeper and involves a fundamental misperception of thenature of tenure in higher education. The underlyingassumptions behind Rule 31003 are such as to vitiatebasic principles on which tenure is established. That thesystem’s Faculty Advisory Council in the past had beeninvolved in the review process on previous occasions(see note 5 above) does not mitigate the Association’sconcern over the inadequacy of Rule 31003.Whether the applicability of Rule 31003 to the University

of Texas as a whole means that tenure is potentially atrisk throughout the entire system cannot be answered

simply.14 System representatives did not seem to disputethat, subject to board oversight, a particular campus couldimpose a higher standard for proceedings governing fac-ulty status. Much, too, depends on local campus climate.Just as good regulations do not always ensure good prac-tice, so poor regulations are not always a signal of badpractices; in its polity, its everyday working life, an institu-tion with the right mix of leadership and commitment canalways rise above its own rules. But doing so depends onan atmosphere of trust between administration and facul-ty and a stronger tradition of faculty participation ingovernance than is evident at UTMB. If programmaticand personnel decisions are driven by a heavy reliance onclinical income, an institution has come very close to theboundary that separates an academic enterprise from acost-effective business, in which tenure ceases to meanmuch more than “as long as you pay your way, you stay.”What is required at UTMB is more than a rewriting of aregents’ rule. It is a shared understanding among facul-ty, administration, and board of where an appropriateboundary line can be drawn to ensure academic quality.

VI. Conclusions1. By proceeding under the provisions of Rule 31003,

the administration of the University of TexasMedical Branch at Galveston acted to terminatethe appointments of tenured and nontenuredfaculty through a process seriously deficient bythe standards laid out in the Association’sRecommended Institutional Regulations onAcademic Freedom and Tenure. In particular,the shortcomings in academic due processincluded, in disregard of the provisions in the1940 Statement of Principles on AcademicFreedom and Tenure that terminations oftenured appointments for reason of financial

14. In their response to a prepublication draft of thisreport, Dr. Shine and Mr. Burgdorf stated the following:

UTS [the University of Texas System] has been andremains firmly committed to the principles of tenure. . . .UTS is a System of 15 institutions with over 18,000 facul-ty of whom 6,841 are tenured and 3,229 are on tenure-track. Tenure is carefully granted, after full and properpeer review, and in accord with accepted principles ofacademic freedom and faculty governance. And onceearned, it is cherished by the holder and respected byUTS. The academic freedom and employment security oftenured faculty members are fully protected, and tenuredfaculty, appropriately, play a vital role in the governanceof UTS and its institutions.


exigency be demonstrably bona fide, the placingof the burden of proof on the faculty member todemonstrate that the exigency was not bona fideor that the action taken to terminate his or herappointment was arbitrary or unreasonable.

2. The faculty role in determining the existenceand magnitude of financial exigency inNovember 2008 and in assessing the impact ofa declaration of financial exigency on academ-ic programs and faculty status was, for all prac-tical purposes, nonexistent.

3. In restricting the scope of review of a termina-tion, Rule 31003 severely inhibits both the dueassertion of individual faculty rights and theability of a hearing panel to reach findingsadverse to administrative interests. In addition,there is room for doubt as to whether in allinstances, such as in the overall assessment ofthe academic program in advance of identify-ing appointments for termination, the reviewprocedures employed comported with applica-ble provisions of Rule 31003 itself.

4. The manner of selection of the faculty bodiesinvolved in the reduction-in-force process wasdeficient by the standards of the 1966 Statementon College and University Government andraised questions about the extent of their inde-pendence of administrative authority. NeitherRule 31003 nor Rule 31008 ensures the independ-ence of a faculty body, chosen or approved by fac-ulty action, a course of proceeding that would notin any way undercut the ultimate authority of thepresident and governing board in the final disposi-tion of cases but that would allow for an appro-priate exercise of independent judgment on thepart of the faculty commensurate with its primaryresponsibility in matters affecting faculty status.

5. Affordance of notice or severance salary to thereleased faculty members was inadequate whenmeasured against Regulation 8 of theRecommended Institutional Regulations.

6. By resting the responsibility largely on thereleased faculty member to find out if a positionhad opened suitable to his or her interests andcompetency and by requiring the faculty mem-ber to compete for any such opening, the admin-istration failed to observe the requirements ofRegulation 4c(6).

7. In the absence of evidence indicating that newappointments were required to address directlythe problem of UTMB income, the administra-

tion has failed to demonstrate that many of thenotifications of termination could not have beenrescinded when funds for recruitment wereexpended during spring 2009. �

LAWRENCE S. POSTON (English)University of Illinois at Chicago, chair

RONALD M. ATLAS (Biology)University of Louisville

GLORIA GIARRATANO (Nursing)Louisiana State University Health Sciences Center

Investigating Committee

Committee A on Academic Freedom and Tenure has byvote authorized publication of this report on the AAUPWeb site and in the Bulletin of the AmericanAssociation of University Professors.

Chair: DAVID M. RABBAN (Law), University of TexasatAustin15

Members: RONALD M. ATLAS (Biology), University ofLouisville16; MICHAEL F. BÉRUBÉ (English), PennsylvaniaState University; SHELDON KRIMSKY (BiomedicalEthics and Science Policy), Tufts University; DAVIDMONTGOMERY (History), Yale University; ADOLPH L.REED JR. (Political Science), University of Pennsylvania;ANDREW T. ROSS (American Studies), New YorkUniversity; ELLEN W. SCHRECKER (History), YeshivaUniversity; CARY R. NELSON (English), University ofIllinois at Urbana-Champaign, ex officio; GARY RHOADES(Higher Education), AAUP Washington Office, ex offi-cio; MARTHA S. WEST (Law), University of California,Davis, ex officio; ERNST BENJAMIN (Political Science),Silver Spring, Md., consultant; JOAN E. BERTIN (PublicHealth), Columbia University, consultant; MATTHEW W.FINKIN (Law), University of Illinois at Urbana-Champaign, consultant; ROBERT A. GORMAN (Law),University of Pennsylvania, consultant; JEFFREY R.HALPERN (Anthropology), Rider University, consultant;ROBERT C. POST (Law), Yale University, consultant;JEFFREY KRAUS (Government and Politics), WagnerCollege, liaison from Assembly of State Conferences.

15. Did not participate in any vote or discussion concerningcommittee action in this case.

16. Did not participate in any vote concerning committeeaction in this case.

Documents

Academic Freedom and Tenure: The University of Texas ... · In accor-dance with Association practice, the text was then edited by the Association’s staff, and, as revised, with