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Why the UT System's New Compensation Policy in its Health Science Related Institutions is Tenure Busting

Dr. Kenneth Shine, the UT System's Executive Vice Chancellor for Health Affairs, has publicly stated on several occasions that there's no connection between tenure and compensation. Simply put, Shine's position is that tenure and compensation are separate matters. Tenure, he argues, confers a title on a faculty member, which is totally distinct from the issue of what a faculty member earns. Dr. Shine's utterances and the polices that the UT System is now pushing through at some of its health science centers such as the UT Medical Branch by forcing professors to accept a new compensation plan amount to nothing more than the latest chapter in the UT System's long history of attempting to bust tenure. Why is it tenure busting? Because it is impossible for tenure to provide meaningful protection for a professor's employment when the connection between compensation and tenure is severed.

In fact, the 1940 Statement of Principles on Academic Freedom and Tenure, jointly approved by the American Association of University Professors and the Association of American Colleges and Universities, makes an unequivocal connection between tenure and compensation. It states in part:¹

Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society.

Thus, Dr. Shine's disingenuous attempt to separate tenure and compensation flies in the face of the 1940 Statement itself.

The UT System currently has only three options when it comes to firing a tenured professor. I would submit that none of the three are terribly satisfactory for tenure busters such as Dr. Shine (and his boss, UT System Chancellor Mark Yudof). First, tenured professors may be removed for "good cause." Typically, such cases involve a professor being hauled up on charges such as sexual harassment or incompetence. In cases involving the termination of a tenured professor for good cause, the burden of proof lies with the institution. The professor is entitled to a full scale due process hearing before a panel of his or her peers. Second, tenured professors may be removed if their academic program or department is abandoned by their component institution. However, after TFA won a major lawsuit against UT Dallas, tenure busting by the abandonment of academic programs became much more problematic for the UT System. (See discussion below.) Third, tenured professors may be removed when an institution declares financial exigency: that is, a bona fide financial emergency. In my opinion, the UT System will never declare financial exigency. The main reason is because if a UT component institution that had declared financial exigency were to be challenged in a court of law, the UT System would have to open up its books for inspection. Given its vast resources, it would have a daunting task trying to prove its case.

What all this comes down to is up until now it has been darned hard (and time consuming) for the UT System to fire a tenured professor. Administrators want flexibility—the ability to move around resources and personnel with relative ease. Why, then, doesn't the UT System simply abolish tenure outright? The explanation lies in the value that professors place on academic freedom and tenure. The UT System would be hard pressed to recruit the quality professors it needs in its component institutions if it overtly did away with tenure. So, the goal of UT administrators since I have been TFA's Executive Director has been to find some way to get rid of tenured professors with a minimum of fuss or bother, while preserving the illusion that the UT System is a strong supporter of tenure and the academic freedom it protects.

I do want to make it clear that TFA is not opposed to change. Sometimes programs do need to be eliminated or budgets reduced. However, when changes must be made, it is imperative that institutions of higher education have sound procedures in place and that those procedures be followed, especially when tenured professors are involved.

A Brief History of Tenure Busting in the UT System: 1988 to the Present

In 1988, the year I became TFA's Executive Director, the president of UT Dallas discontinued two academic programs and terminated all the faculty members in the programs. Both non-tenured and tenured faculty members were fired without any due process pursuant to infamous language that had been inserted in the Regents' Rules granting the presidents of component institutions the authority to terminate programs at will.² This was nothing more than a barefaced plan to bust tenure, especially in light of the fact that the UT System had made it clear in a previous case at UT Arlington that even a single tenured professor could be considered a "program."³ After attempting to resolve the matter informally, TFA filed suit in federal court on behalf of ten of the terminated tenured faculty members (the "UT-Dallas 10") and fought the lawsuit all the way to the Fifth Circuit Court of Appeals. Fortunately, the Fifth Circuit ruled that the UT-Dallas 10 were entitled to individual due process. The Fifth Circuit said that because the UT-Dallas 10 held tenure within UT-Dallas itself, and not within their academic program, the professors were entitled to apply for any position within the university for which they were qualified. As a result of the decision, the UT System was forced in 1992 to change its rules to provide for extensive due process for tenured professors in cases involving program terminations. Thereafter, program eliminations fell out of favor as a way of busting tenure within the UT System.⁴

Jump forward to 1996. The headline for the TFA Bulletin for May 1996 reads, "UT Masterminds New Way to Break Tenure Commitments—Draconian Salary Reductions Hit Medical School Faculty." In the fall of 1995, TFA received several phone calls from faculty members at the UT Medical Branch concerned about the administration's proposed "Faculty Compensation Plan" which permitted the administration to cut salaries. Later, TFA was contacted by a tenured professor in the basic sciences at The University of Texas HSC-Houston whose salary had been reduced by nine percent for the new fiscal year without any due process. What is more, the same professor received a contract stating that 90 percent of his salary was composed of "non core" or "at risk" dollars, while only 10 percent would be guaranteed as "core" salary. TFA was successful in thwarting these attempts to undermine tenure a decade ago. However, it now appears that the UT System has been waiting for an opportune moment to resurrect in efforts to bust tenure by reducing salaries. In fact, when I met with a group of Medical Branch faculty last summer, I joked that TFA could reprint the 1996 Bulletin article by just crossing out the "1996" and inserting "2006."

Dr. Shine has stated that the UT System has no intention of zeroing out the salary of a tenured professor and that it, therefore, follows that UT is not interested in busting tenure. This is clearly a specious argument on his part. The fact is that if a tenured professor's salary is reduced by, let's say, 30 percent, UT wins whether the professor stays or leaves. If the professor stays, UT pockets the 30 percent; if the professor leaves, UT saves the professor's entire salary.

Vice Chancellor Shine and UT Medical Branch President Stobo have stated ad nauseam that their primary goal of their new compensation plan at the Medical Branch is to "reward productivity," by reallocating resources from less productive to more productive professors. In fact, when I visited the Medical Branch last summer, I met with several faculty members who were among the highest achievers among the Medical Branch's research Ph.D.s—faculty members with national reputations in their fields and substantial grants. Yet, these faculty members told me they were all in line for big cuts. Why? Because they weren't "productive"? Balderdash. The real reason is because the Medical Branch administration is determined to reduce the payroll, probably under orders from Dr. Shine and the UT Board of Regents. The report issued by the expensive consultants UTMB hired is nothing more than a pretext for the cuts. Indeed, President Stobo himself was quoted in a Chronicle of Higher Education article as stating that some tenured faculty members may be discouraged from remaining by having their salaries cut.⁵ Moreover, documents obtained through the Texas Public Information Act by TFA prove beyond any reasonable doubt that the goal all along has been to reduce the payroll and to drive away tenured faculty members.

If you need a smoking gun, I would point you to the exchange via email on June 22, 2006, between Valerie M. Parisi, at the time the Medical Branch's dean of the School of Medicine, to UTMB president John S. Stobo:⁶

Could Chris join the SEC tomorrow for a few minutes? He has been working hard but has not really identified any approp strategy for us to reduce tenured faculty except for reducing salary.
VMP.

And President Stobo's reply was:

Sure—have him come around.

(Emphasis added.)

The wonderful thing about slashing the salaries of tenured faculty members from UT's perspective is that so little due process is involved compared to the due process that tenure professors are afforded if they were hauled up on termination charges, if their program were eliminated or if financial exigency were declared. Sure, if your salary is reduced, you can file a grievance pursuant to UTMB's grievance procedure and you might even get some relief, but I would not bet on it. In fact, when the UTMB administration learned that TFA members who were slated for salary reductions intended to file grievances, the administration immediately began to take steps to gut the grievance procedure!

Ominously, The UT Health Science Center at San Antonio already has had language in its Handbook of Operating Procedures (HOP) for several years disconnecting tenure from compensation. The language states, "Tenure and compensation are separate matters, and the distinction should be continued. Tenure does not guarantee any certain level of compensation."

Conclusion

If the UT System gets away with its plan to bust tenure by slashing salaries at its health science centers, it will only be a matter of time before the invidious plan spreads like a malignant tumor beyond health related institutions to UT's academic universities. Chancellor Yudof and Vice Chancellor Shine's reprehensible argument that compensation and tenure are severable must not be allowed to prevail. It is time for faculty throughout the UT System to stand up to this threat. If they don't, tenure itself will be on the critical list.

¹See AAUP Policy Documents and Reports, 10th Edition, American Association of University Professors.

²The infamous section 6.12 of the Regents Rules gave the presidents this authority.

³The UT-Arlington administration attempted to eliminate the position of a tenured professor who taught guitar. However, when the UT-Arlington faculty senate asserted itself, UT backed down. It then moved its attack against tenure to UT-Dallas. Ironically, in the fall of 1988, AAUP removed the UT System from its list of censured administrations. UT had been censured for instituting a term tenure system at UT-Permian Basin, thereby running afoul of AAUP regulations. In order to be removed from the list of censured administrations, UT had to agree to institute tenure system at Permian Basin fully in accord with AAUP guidelines.

⁴TFA v. UT-Dallas is now considered a landmark precedent in cases involving program eliminations—one that worries attorneys representing institutions of higher education.

⁵The Chronicle of Higher Education, July 21, 2006.

⁶TFA obtained the documents through the Public Information Act.