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May 10, 2010


B. Proposed Revisions to UT Austin's HOP 3.16: Threatened Faculty Entrenchment. (D 8009-8012)

Chair Staiger reported that the UT System was in the process of revising Regents’ Rule 31003 in order to clarify the policies regarding financial exigency as a result of the layoffs and terminations of tenured and untenured faculty and staff at The University of Texas Medical Branch in Galveston. Because system officials had asked institutions across the state to interpret the rules and construct their own policies for such a situation, the FCEC was proposing revisions to section 3.16 of UT Austin’s Handbook of Operating Procedures (HOP). She began her PowerPoint presentation by briefly explaining the two types of situations that the Regents’ Rules address regarding faculty retrenchment: (1) abandonment of academic positions or programs for academic reasons and (2) a broad-scale institutional financial exigency situation. Because the PowerPoint slides she presented are comprehensive and closely paralleled Chair Staiger’s statements, the contents of the slides are included in Appendix B. In speaking about the content of slide B-9 where the statement reads that at least half of a seven-member committee should be faculty without administrative duties, Chair Staiger added that the system’s legal counsel, Mr. Dan Sharphorn, indicated he considered department chairs as having administrative duties and would exclude them from this portion of the committee’s composition. With regard to slide B-12, Chair Staiger said some faculty at UTMB and other universities had been told to vacate their laboratory space almost immediately after receiving notification that their jobs were being eliminated; she explained that the statement saying faculty would be allowed a reasonable time to close down research in non-destructive ways was added to prevent this from occurring.

Chair Staiger reported that conversations with legal counsel since the proposal was presented to the Council for informational purposes in April had resulted in the need for four amendments; these amendments are also included in the PowerPoint presentation in Appendix B. She said Mr. Sharphorn and others had indicated that section two regarding abandonment of positions and programs for academic reasons was interpreted as including abandonment for budgetary reasons falling short of financial exigency. In order to make this clear in the proposed changes to UT Austin’s HOP, Chair Staiger said the original documents presented in April had been amended, where needed, to include the phrase “and budget reasons” (slide B-13). The second amendment was added to expand the rights to all faculty members employed in programs being considered for elimination to participate in the review process; the original document had only provided this right to tenured faculty (slide 14-B). The third amendment was added to define a program as “a planned, coordinated group of courses for a specific curricular goal” (slide B-15).

With regard to the fourth amendment, Chair Staiger said that discussions with the Committee of Counsel on Academic Freedom had revealed that Regents’ Rules were not in compliance with what the American Association of University Professors (AAUP) considered acceptable for the protection of tenured faculty. After conferring with legal counsel, Mr. Pedro Reyes, and others at UT System, Chair Staiger said the decision was made to write the UT Austin rules so they conformed to AAUP guidelines even though it is unknown if changes to Regents’ Rules will occur. She said she thought this amendment was the most significant of the four because it consolidated the information in sections 3.3 and 3.4 of the current Regents’ Rule 31003 into one section and changed the wording to that used in AAUP’s Redbook regarding tenure preference. To accomplish this, the following statement in section 3.3 of Regents’ Rules would be eliminated: “The tenure status of a faculty person shall not be a consideration in the determination of whether a particular position shall be terminated except as permitted in section 3.4 below.” Instead of the previous statement, the following new wording would be added as a replacement: “The appointment of a faculty member with tenure will not be terminated in favor of retaining a faculty member without tenure, except in extraordinary circumstances where a serious distortion of the academic program would otherwise result” (slide B-17).

Professor Gordon Novak (computer science) asked if the wording on the first amendment should have said programmatic or budget reasons instead of programmatic and budget reasons. Chair Staiger said the wording needed to be “and” because legal counsel had advised that abandonment of academic positions/programs for academic reasons and for budgetary reasons short of a financial exigency situation were both addressed in section two of Regents’ Rule 13003. When Professor Novak said he thought the two were considered very differently in computer science and wondered if the wording was consistent with the intent, Chair Staiger responded that elimination of positions and programs could be done for academic and budgetary reasons, with the two often interrelated, and should follow section two procedures.

Professor Tom Palaima (classics) apologized for not noticing the narrowness of the definition of a program in amendment three when the FCEC discussed the proposed changes. He said he thought a program could extend beyond courses and curricular goals and thought the definition needed to possibly be a “planned, coordinated group of courses and related educational outreach and research activities for a specific curricular or general scientific goal” or some similar statement in order to broaden its scope. When Chair Staiger responded that that the definition that was used resulted from concern about faculty and positions being terminated, Professor Palaima said faculty were often involved with programs that receive funding that is not course related, and he would not want to see programs and faculty terminated because only the instructional element were being considered. Chair Staiger said she believed there was a difference between the definition of a program and the identification of factors to consider in eliminating a program; furthermore, she thought it was unlikely that a program at the University would exist without having some sort of curricular or instructional goal. She referred to the wording in the amendment as a minimal definition of program. When Professor Palaima said he was still concerned about budgetary implications in the case where a program might have four components rather than simply this single one, Chair Staiger said she agreed that the full impact of a program should be reviewed before any terminations occurred. When Professor Palaima asked if the items on the floor would be revisited in the future, Chair Staiger said she would like to get the legislation on the floor approved by the Faculty Council this academic year and sent to President Powers. She said she did not know if the legislation was likely to be approved and sent on to UT System, but she could easily see further negotiations about refinements continuing with the administration on into the next academic year. However, she added that she would “like to at least get it moving.” Professor Palaima said if others did not see a problem that he would let the definition remain as stated but would like to reserve the right to propose an amendment if anyone else saw a problem with the narrow definition.

Chair Staiger said she wanted the Council to vote on each of the four amendments and then the entire proposal as amended. She said the first amendment was to add the word “budget” so it was clear that section two of Regents’ Rule 13003 pertained to abandoning academic positions or programs for academic and budget reasons. Chair Staiger said she had worried if “or” was a better choice than “and” in this amendment, and then asked the Council, “Is ‘or’ the better word?” When a number of the Council members replied “yes,” she asked for an amendment to substitute “or” for “and.” Professor David Hillis (integrative biology and past chair of the Faculty Council) spoke against making the wording change, saying he felt that abandonment of an academic position for budget reasons belonged in section three, where financial exigency is covered. He said he thought adding the “and budget” wording was problematic to begin with and substituting the word “or” was worse. When Chair Staiger replied, “That’s not the way the System is understanding which sections would be activated; section three would be when you’re declaring financial exigency for the whole institution,” Professor Hillis said he thought it did not make sense to add “and budget” to section two when financial exigency was covered in the next section. When Chair Staiger pointed out that a department could eliminate an individual program without the University declaring a full financial exigency, Professor Hillis asked if eliminating the program in that case would be presumably for academic reasons. Chair Staiger replied that it could occur for budget reasons. Professor Hillis said he thought it would be a mistake to conflate the two issues. He said he preferred to have separate sections in the document for program elimination for academic reasons and for budget reasons because the two should not follow the same set of rules. Chair Staiger said she understood his point, but the document needed to reflect that UT System was interpreting section two as applicable to budgetary as well as academic reasons for program and personnel cuts.

Professor LeeAnn Kahlor (advertising) asked if the wording might be changed to academic or academic and budget reasons so academic reasons would apply in both types of situations. Chair Staiger said she would be willing to accept that wording as an amendment, but she could still see program and personnel being eliminated only for budget reasons that would not involve financial exigency being declared for the entire University. When Professor Palaima said he supported Professor Hillis’ objection to the use of the word “or” as being problematic, Chair Staiger said she would leave the word “and” in the document if nobody supported the usage of “or.”

Chair Elect Neikirk said he supported the usage of “or” because he was concerned a program could be eliminated purely for budgetary reasons at a lower level within the University’s organizational structure without financial exigency being involved; in such a case, section three requirements could not be invoked. If the unit also claimed that academic reasons played no role in the decision to eliminate the program, then section two rules could not be invoked. Chair Neikirk said he thought it was essential to link the academic and budgetary reasons together, and he thought the use of the word “or” was better than “and” to prevent the unit from claiming there was no policy about program or personnel reductions purely based on budgetary reasons occurring without financial exigency being declared. He said he thought his example illustrated the confusion that Chair Staiger had pointed out in defending the usage of academic or budget reasons in the amendment. He added that the Faculty Council would not be involved in any way with regard to program and personnel eliminations or reductions if they occurred for purely budgetary reasons when financial exigency had not formally been declared.

Chair Staiger said Chair Elect Neikirk had moved acceptance of the phrase “academic or budget reasons” and asked if there was a second to his motion. After the motion was seconded, Chair Staiger asked if there was additional discussion. Professor Hillis said he thought Chair Elect Neikirk’s interpretation and arguments made sense so he removed his objection to the usage of the word “or.” Professor Palaima said he would not remove his objection because he thought claiming the reasons for program elimination were purely budgetary would be “absolutely an impossibility within the University” once questions were raised as to why the decision had been made. He said he feared the usage of “or” could allow rationales based only on budgetary grounds, which he thought would be “unfathomable” if the word “and” was left in place.

With no further discussion forthcoming, Chair Staiger called for a voice vote on the amendment to change the word “and” to “or” in the first amendment. The voice vote was mixed with some Council members saying aye and some saying nay; Chair Staiger said, “I believe the ayes have it.” No one objected or called for a count of hands.

Chair Staiger then asked for discussion regarding the first amendment, “abandonment of academic positions or programs for academic or budget reasons,” being added to D 8009-8012. Since no discussion occurred, she called for a voice vote, and the amended amendment passed with no objections being made.

Chair Staiger asked if there were questions or comments about the second amendment, which allowed any faculty members, rather than only tenured faculty members within a program, to give information regarding the situation if their position were under threat of elimination. There were no questions so a voice vote was called, and the amendment was unanimously approved.

Professor Raúl Madrid (government) asked for Vice Provost Gretchen Ritter to be recognized to speak; Chair Staiger agreed. Vice Provost Ritter said she thought the definition of program was important, but she felt the definition used in the amendment needed to be more tightly specified than it currently was. The vice provost said the Vietnamese language classes would qualify as a program as described in the current definition even though they were not required in any degree plan, described programmatically by any department or in any catalog, and had no involvement of tenured faculty members. She said she thought these characteristics should be included in a revised definition of what a program entailed. Professor Evans argued in favor of a less restrictive definition saying he had observed that there could be curricular goals even when a degree program was not involved from his involvement in the Bridging Disciplines Program. He said it was good that a minor, concentration, or certificate program could be included under the current broad definition. Chair Staiger responded that she would like to see the legislation passed this year even though she acknowledged there could be disagreements when actual cases were presented; however, she said further refinement could be undertaken during the coming year. Because there was no further discussion, she called for the vote, and the third amendment adding the proposed definition for a program passed by voice vote with only one negative vote being expressed.

Chair Staiger called for the vote on the fourth amendment that would bring the UT Austin policy into compliance with AAUP guidelines regarding the favoring of retention of tenured over non-tenured faculty unless a serious distortion of the academic program would result. The amendment unanimously passed by voice vote. With all four amendments having been approved by the Council, Chair Staiger asked for the vote on the proposed revisions to UT Austin’s HOP 3.16 on threatened faculty entrenchment, and the document was unanimously passed by voice vote.

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