DOCUMENTS OF THE GENERAL FACULTY
PRESIDENT'S RESPONSE OF SEPTEMBER 17, 2002, TO REPORT AND
RECOMMENDATIONS FROM THE FACULTY GRIEVANCE COMMITTEE, 1999-2000
September 17, 2002
Dr. John Durbin, Secretary
The General Faculty
The University of Texas at Austin
FAC 22 (F9500)
I write a second time in response to the "Report and Recommendations
from the Faculty Grievance Committee," Documents of the General Faculty, 582-585 (enclosed).
In the wake of my previous letter, dated May 28, I received comments in
a letter dated July 30, 2002, from several members of the faculty, including
present and former chairs of the Faculty Grievance Committee. That letter
also contained a request that I review my response of May 28. I have now
done so in consultation with the Executive Vice President and Provost,
the Vice President for Institutional Relations and Legal Affairs, and the
Deputy to the President, and I conclude that changes in my response are
The following is a substitute in toto for the response of May 28:
|| Role of the President in the Grievance Process
This section contains two recommendations.
|| "The Grievance Committee will work with the president
through the provost."
I approve this recommendation with the understanding that it
does not apply to grievances of tenure-track faculty over nonrenewal
decisions, or termination of tenured faculty, which are conducted
pursuant to Part I, Chapter III, Section 6.3 of the Regents'
Rules. It is my intent that the Executive Vice President and
Provost be the President's delegate with respect to (a) consulting
with the Grievance Committee on any aspect of its work, (b)
assisting in convening a hearing panel and facilitating its
work as needed, (c) receiving the report of a hearing panel,
and (d) forwarding it to the President for final action with
the right of comment and recommendation.
|| The second item concerns authorizing a hearing panel when
a grievance is brought by a tenure-track faculty member over
a nonrenewal decision. (Part I, Chapter III, Section 6.35 of
the Regents’ Rules).
I cannot approve this recommendation. According to the Regents’ Rules,
the President is responsible for deciding whether to provide
a hearing when a grievance is brought by a tenure-track faculty
member over a nonrenewal decision. This decision must be made
within the parameters established by the Regents’ Rules.
I am unable to give this responsibility to the Grievance Committee.
|| Hearing Panels
I cannot approve this recommendation to the extent that the Grievance
Committee proposes its application to grievances of tenure-track
faculty over nonrenewal decisions, or termination of tenured faculty,
which are conducted pursuant to Part I, Chapter III, Section 6.3
of the Regents' Rules. Of course, the panels for other types of
grievances will continue to be drawn at random, as provided in
the Faculty Grievance Policy. I hope that, in those instances where
the Provost advises that a certain expertise on the panel would
be beneficial, the draw will be done so as to secure such expertise.
|| Legal Counsel
I agree with this procedure and approve it. I add that if a case
arises during which a faculty member of the School of Law is not
available to provide legal counsel to the panel, the Vice President
for Institutional Relations and Legal Affairs is agreeable to arranging
legal counsel by a member of our campus legal staff or the UT System
Office of General Counsel who has not been involved previously
in the particular case.
|| Increased Legalization
The Committee will want to continue its work with the Executive
Vice President and Provost as indicated in the report.
|| Due Process
|| The first recommends the implementation of mid-probationary
I approve this recommendation with the understanding that
(a) its implementation is within the sole discretion of the
Office of the Executive Vice President and Provost, and (b)
its implementation does not create a contractual right to
such a review or to a particular review process.
|| The second recommendation is that "the Grievance
Committee will work with the administration to develop
operating guidelines as to what constitutes 'substantive'
or 'egregious' violations of the promotion and tenure
guidelines, and procedures that would allow faculty members
to grieve on procedural grounds."
I cannot approve this recommendation. The proposal, if implemented,
would allow an untenured, tenure-track faculty member who
is not renewed to grieve that decision by alleging denial
of due process. Due process is a constitutionally defined
right that is present only if the University, as a governmental
entity, takes action to remove a benefit or property interest
that it has already bestowed. The Rules and Regulations of
the Board of Regents are clear that untenured faculty are
not entitled to the expectation of tenure and consequently,
have no right to due process in the tenure process. Approval
of this proposal would result in an unauthorized expansion
of the Regents' Rules, particularly Part I, Chapter III,
Section 6.3, which limits the grounds for reviewing a decision
not to renew a nontenured faculty member to those situations
where it is credibly alleged that such decision was made
for reasons that are unlawful under the laws and Constitution
of this state or the United States.
|| Faculty Ombudsperson
The original "Proposal from the Faculty Grievance Committee
to Create an Office of the Faculty Ombudsman" appeared in
the Documents and Proceedings of the Faculty Council, 17040-17043.
|| disapproved that proposal in my letter of November 30, 2000, to
Professor Patrick Davis, who was Chair of the Faculty Council at
In 2001-2002, a revised "Proposal from the Faculty Grievance
Committee to Create an Office of the Faculty Ombudsman" (Documents
of the General Faculty, 1652-1655) was considered and approved by
the Faculty Council. If the Executive Vice President and Provost
will confirm that he can find sufficient funding to support this
new office adequately, I will approve this revised proposal.
|| Past Chair
I approve the recommendation as given in the report.
I appreciate your time and that of the other faculty with whom we met
on September 7 to discuss issues regarding the grievance process. I understand
that the primary remaining concern of that group relates to the ability
of a tenure-track faculty member subject to a possible nonrenewal decision
to have the opportunity to raise his or her relevant issues of concern
before a final decision is made on the nonrenewal decision. As discussed,
we will continue working with you and other faculty on a way to address
If you have any questions, please do not hesitate to contact me.
Larry R. Faulkner
Distributed through the Faculty Council web site
on September 19, 2002. Copies are available on request from the Office
of the General Faculty, FAC 22, F9500.
|| Executive Vice President and Provost Sheldon Ekland-Olson
|| Vice President Patricia C. Ohlendorf
|| Professor Michael Granof
|| Professor Neal Armstrong
|| Professor Alan Friedman
|| Professor Jack Getman
|| Professor Martha Hilley
|| Professor Alba Ortiz
|| Professor Janet Staiger