AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS

1012 FOURTEENTH STREET, N.W., SUITE 500
WASHINGTON, D.C. 20005-3465
FAX: (202) 737-5526
(202) 737-5900

March 8, 2000

Dr. J. Wade Gilley
President
University of Tennessee
800 Andy Holt Tower
Knoxville, Tennessee 37996-0180

Dear President Gilley:

Members of the faculty in the Department of Pediatrics at the University of Tennessee Graduate School of Medicine in Knoxville, with the support of the leadership of the Knoxville campus Faculty Senate and of the local AAUP chapter, have sought the advice and assistance of the American Association of University Professors as a result of having been notified by Dean Michael Caudle, at a meeting on January 26, 2000, that the administration has decided to discontinue their department and thus to terminate their services at the end of the 2000-2001 academic year.

The interest of our Association in these cases stems from its longstanding commitment to academic freedom and tenure. The basic tenets, as you are doubtless aware, are set forth in the enclosed 1940 Statement of Principles on Academic Freedom and Tenure, jointly authored by AAUP and the Association of American Colleges and Universities and endorsed by nearly 170 educational and professional organizations. Derivative procedural standards are set forth in the Association's enclosed Recommended Institutional Regulations on Academic Freedom and Tenure. We understand that a copy of the latter document has already been sent to you by the president and president-elect of the Faculty Senate. We have noted the relevant policies and procedures in the University of Tennessee regulations.

Regulation 4(d) of the Recommended Institutional Regulations, which sets forth AAUP's formulation of criteria and procedural standards relating to the termination of appointments on grounds of program discontinuance, forms the basis for the concerns enunciated in this letter. We are concerned, in the first place, with the nature and extent of faculty involvement in the decision to discontinue the pediatrics program and, as a consequence of that decision, to terminate all faculty appointments in the department. Regulation 4(d) states that decisions to discontinue a program or department of instruction will be "based essentially upon educational considerations, as determined primarily by the faculty as a whole or an appropriate committee thereof." By contrast, according to the information available to us, no faculty consultation occurred prior to these decisions.

We are also troubled with the adequacy of the procedures available to the affected faculty members to contest the actions that are being taken against them. With respect to requisite academic due process, Regulation 4(d) calls for a full hearing before a faculty committee at which a "faculty determination that a program or department is to be discontinued will be considered presumptively valid, but the burden of proof on other issues will rest on the administration." In contrast to the foregoing, we understand that the pediatrics faculty are not to be afforded opportunity to be heard on the issues of concern.

Finally, we question whether the University of Tennessee has met the requirement of Regulation 4(d)(2) that, "Before the administration issues notice to a faculty member of its intention to terminate an appointment because of formal discontinuance of a program or department of instruction, the institution will make every effort to place the faculty member concerned in another suitable position." We understand that Chancellor Rice has assured the subject professors that the administration is "fully committed ä to attempt to place each displaced tenured faculty member in another suitable position, if possible." We would hope that the administration will make "every effort" to pursue other feasible alternatives to the termination of their appointments prior to issuing them written notification of their release.

We appreciate that our information on these cases has come to us primarily from faculty sources at the University of Tennessee-Knoxville, and that you may have additional information that would contribute to our understanding of what has occurred. We would therefore welcome your comments on the contents of this letter. Assuming the essential accuracy of the facts as we have recounted them, we urge that the University of Tennessee administration not follow through with its decision regarding the closure of the Department of Pediatrics and the termination of faculty appointments, pending steps taken in conformity with the foregoing standards.

THE UNIVERSITY OF TENNESSEE

Office of the President
800 Andy Holt Tower
Knoxville 37996-0180
Telephone (865) 974-2241
FAX (865) 974-3753

March 13, 2000

MEMORANDUM

What is the status of the faculty relative to the discontinuation of the program?

Have individual faculty members been given notices of termination?
If so, were the appropriate policies of the Board of Trustees followed (as defined in the Faculty Handbook)? If not, what is the status of the faculty in the program?

How many faculty members are involved?

Exactly what is being terminated or discontinued--the entire Pediatric Residency Program of the Health Science Center or just the portion offered in Knoxville?

Are residency programs considered academic programs and approved by the Board of Trustees and/or THEC?

What does the approval and termination process for such programs entail?
Does UT have policies to cover such approvals and terminations?

What consultation is required for termination and did appropriate consultation occur?

What is the status of the students relative to the discontinuation?

Are students currently in the program being appropriately accommodated?

What body has jurisdiction over such a termination or discontinuation? The UT Knoxville Faculty Senate has assumed it has jurisdiction over the program. The program is part of the University of Tennessee Health Science Center in Memphis, which is still accredited independently.

AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS
TENNESSEE CONFERENCE

March 15, 2000

Dr. J. Wade Gilley, President
The University of Tennessee
800 Andy Holt Tower
Knoxville, TN 37996-0180

Dear President Gilley:

The UTK Faculty Senate and the local AAUP chapter on your campus have brought to my attention the decision of your administration to discontinue the Department of Pediatrics at The University of Tennessee Graduate School of Medicine in Knoxville. I know you have already received a letter from the National AAUP Associate Secretary Robert Kreiser regarding this decision. My intention in writing you is to let you know that the Tennessee Conference of The AAUP is very concerned about the process, or perhaps I should write, the lack of due process, in your administration's making that decision.

What is particularly troubling is your administration is in violation of the UT-Memphis Faculty Handbook approved by The UT Board of Trustees. For example, Paragraph 7.1.3 says, "According to the Board's policy, in the case of academic program discontinuance, the termination of tenured faculty may take place only after consultation with the Faculty (italics mine) through appropriate committees of the department, the college, and the Faculty Senate." Unquestionably, none of this was followed in The UT administration's recent decision.

There are other, equally disturbing "lapses" in following the Faculty Handbook, but by now all of these have been brought to your attention. Let me suggest that you review the decision to discontinue the Department of Pediatrics in light of the administration's failure to afford even a modicum of due process or to follow the Faculty Handbook. Let me also extend an invitation to you to address the delegates of the Tennessee Conference of The AAUP at its upcoming meeting on Saturday, April 8 at The University of the South at Sewanee. I am sure you would have the opportunity to more fully explain the administration's recent decision.

I would also like to invite you to respond to the concerns that Mr. Kreiser, the Faculty Senate, the UTK chapter of The AAUP, and I have raised. I believe this is a very serious matter that needs further review on your part and I look forward to hearing from you, either directly or through your communication with the other concerned parties.

THE UNIVERSITY OF TENNESSEE

Office of the President
800 Andy Holt Tower
Knoxville 37996-0180
Telephone (865) 974-2241
FAX (865) 974-3753

March 20, 2000

[The following two documents were distributed to the Executive Committee of the UTK Faculty Senate on April 17, 2000.]

THE UNIVERSITY OF TENNESSEE

Office of the President
800 Andy Holt Tower
Knoxville 37996-0180
Telephone (865) 974-2241
FAX (865) 974-3753

MEMORANDUM

• Prior consultation is always a sound practice when careers are involved. UT policy is very clear that prior consultation is required before tenured faculty members are terminated.
  
  
• UT policy relative to program discontinuation as written does lend itself to more than one interpretation.
  
  
• Apparently, UT policies do not define adequately "academic programs," and therefore there can be different interpretations on whether a residency program is "academic" or not.
  
  
• It has been UT's philosophy to adhere in principal to AAUP policies but UT policies do not necessarily quote AAUP language verbatim.
  
  
• According to the UT Tenure Policy, "Tenure at the University of Tennessee is granted in a particular academic unit of a specific campus in a position appropriate to the faculty member's qualifications."
  
  
• While there is a chronology of meetings that occurred and are documented, there is a difference of opinion relative to the content, tone and intent of the meetings. After the fact, it is difficult to determine exactly what was said and how it was delivered (or received).

1. The administration had the authority to discontinue the Pediatric Residency Program;
   
   
2. Good practice suggests that prior consultation with faculty groups would indeed have been appropriate;
   
   
3. If in the future, the department is terminated, every effort must be made to relocate tenured faculty to positions for which they are qualified;
   
   
4. It is the responsibility of the administration to ensure that every resident is given the opportunity to complete the program or to be employed satisfactorily in another program;
   
   
5. The UT Tenure Policy and each campus Faculty Handbook require a thorough review immediately.

Office of the Provost and
Chief Operating Officer, Knoxville
810 Andy Holt Tower
Knoxville 37996-0184
Telephone (865) 974-3265
FAX (865) 974-4811

31 March 2000

MEMORANDUM

1. What is the status of the faculty relative to the discontinuation of the program? Only the Residency program itself has been discontinued, not the department. Faculty members in the department are responsible for things beyond the residency program (e.g., teaching the Interns who rotate through the Department of Pediatrics). However, with no residency program, there may not be a need to retain all of the current tenured faculty members (10 of the 23 full-time faculty members are tenured) in present positions.

2. Have individual faculty members been given notices of termination? If so, were the appropriate policies of the Board of Trustees followed (as defined in the Faculty handbook)? If not, what is the status of the faculty in the program? No notices of termination have been given because the department per se has not been altered. If notice needs to be given, it will fall under the "academic program discontinuance" provisions of the UT Tenure Policy and the UT Memphis Faculty Handbook (see below).

Two important issues lie behind this question. One has to do with what constitutes an "academic" program; the other has to do with whether it realistically is possible to discontinue the Residency program without affecting the employment status of tenured faculty members in the department.

UT has never defined an "academic program" in its policies. The Board of Trustees Tenure Policy simply says that "Extraordinary circumstances warranting termination of tenure may involve either financial exigency or academic program discontinuance.... In the case of academic program discontinuance, the termination of tenured faculty may take place only after consultation with the faculty through appropriate committees of the department, the college, and the Faculty Senate. If termination of tenured faculty positions becomes necessary because of financial exigency or academic program discontinuance, the campus administration shall...." Although this statement does not define academic programs, it is clear that prior consultation is required before tenured faculty members are terminated.

The UT Memphis Faculty Handbook reiterates the Board Policy and embellishes it only slightly: "When termination of a tenured faculty appointment is based upon discontinuance of a program or function at UT Memphis, the Administration shall.... In every case of discontinuance of a program or department of instruction, resulting in termination of appointment, the tenured faculty member concerned will be given notice...." Here again, there is no definition of what constitutes an academic program; additionally, the Handbook seems to distinguish between "program," "function," and "department of instruction," and the distinction remains unclear. In many departments at UT it would be possible to discontinue a program without necessarily terminating tenured faculty members (e.g., Modem Foreign Languages includes programs in seven or eight languages and at levels from bachelor's to doctoral; thus, for example, if the master's program in Spanish were to be discontinued it would have little impact on the viability of the department as a whole). But if the Pediatric Residency program is so central to the Department of Pediatrics that the department's sustainability is compromised by the discontinuation of the Residency program, then it is arguable that terminating the Residency program is tantamount to terminating the department.

Most members of the University community could identify and define virtually all of our academic programs. But it is understandable that Mr. Rice might believe that the Pediatric Residency program is not "academic":

it has no formal classes, produces no academic credit hours, and awards no degrees;

it has "residents" rather than "students," who are licensed physicians, and who mentor less experienced practitioners as often as they are mentored; and

residents are paid employees rather than fee-paying "students."

At the same time, it is understandable that the Pediatrics faculty considered the Pediatrics Residency program "academic," since tenure is granted in an academic unit (see 7, below) and they see that much of their effort is allocated toward maintaining an educational residency program. (See also the discussion in 5, below.)

3. How many faculty members are involved? Memphis says that there are 26 faculty members in the department: 10 full-time tenured, 2 full-time tenure-track (2001 date), 11 full-time non-tenure-track, and 3 part-time non-tenure-track (3%, 13%, and 20%).

4. Exactly what is being terminated or discontinued--the entire Pediatric Residency Program of the Health Sciences Center or just the portion offered in Knoxville? Only the Pediatric Residency program in Knoxville is being closed. The other sites in Chattanooga and Memphis are not affected.

5. Are residency programs considered academic programs and approved by the Board of Trustees and/or THEC? These programs are not specifically approved by the UT Board of Trustees and THEC (as are all academic majors and degree programs); nor are they shown on UT's Comprehensive Listing of Academic Programs (our annual "inventory of majors, submajors [concentrations, etc.], and degrees). Residency programs are not included in THEC's Academic Inventory. Historically, the administration of the Health Science Center has been solely responsible for beginning and ending residency programs. (See also the discussion in 2, above.)

6. What does the approval and termination process for such programs entail? Does UT have policies to cover such approvals and terminations? UT has very detailed procedures for gaining Trustee and (ultimately) THEC approval for new academic programs; similarly, academic programs are discontinued by a thoroughly interactive process (although, for discontinuation, the UT Board of Trustees--not THEC--is the ultimate authority). The controlling authority is the same for academic units, but the process is far less detailed. In all instances, full consultation with faculty bodies is followed.

The process for approving medical residency programs is different, but it is lengthy and rigorous. This internal process begins with initiation by the College of Medicine or the Graduate School of Medicine (Knoxville), followed by a study of feasibility conducted by a specially-formed Graduate Medical Education Committee. Externally, a proposal is made to the Accreditation Council of Graduate Medical Education (ACGME, the accreditor). At no point is there involvement by Universitywide staff, the UT Board of Trustees, or THEC. Legally, a residency program is discontinued by notifying ACGME of intent to discontinue the program. The administration has the authority to discontinue a residency program, whether one views them it as "academic" or not. But if tenured faculty members are to be terminated because of discontinuation of an academic unit, then prior consultation must take place. Again, regarding the Pediatric Residency program, it remains a debatable question as to whether the program and the unit realistically are separable.

Neither the UT Board nor THEC is involved in any way (neither for approval nor for information) in the establishment or discontinuation of medical residency programs. Still, one might think that a program-building procedure that requires a lengthy committee process also should provide for prior discussion as part of its program-discontinuation procedure.

AAUP speaks to program/unit discontinuance in several ways. UT has sought to avoid direct divergence from the spirit of AAUP policies, while at the same time not directly quoting AAUP language as part of The University's specific policies. Thus, UT policy does not restrict the administration's decisions regarding program or unit discontinuation to what AAUP calls "educational considerations." UT policy does, however, see academic unit discontinuation decisions which affect tenured faculty members as strategic moves which require broad consultation, assistance to displaced tenured faculty members, and non-replacement of tenured faculty slots for at least three years. For example, at its June 1997 meeting, the UT Board of Trustees discontinued the Extension Veterinary Medicine Section and terminated its tenured faculty members; this was done for financial reasons; and it was done after thorough consultation with all appropriate persons and groups in the Institute of Agriculture.

7. What consultation is required for termination and did appropriate consultation occur? If one believes that the Pediatric Residency program is an academic program whose existence is essentially inseparable from that of the department, then UT policies are clear that consultation should occur with departmental, college, and Faculty Senate groups. If one believes that the program is not "academic" or that the department is wholly viable without the program, then no prior consultation is required by UT policy. Good practice, however, would suggest that prior consultation would be desirable.

It is possible to argue that there can be tenured faculty members in a program or unit that is not "academic." UT has tenured faculty members who are professional librarians, or who are employed by the Agricultural Extension Service. Still, the UT Tenure Policy refers to the locus of tenure as follows: "Tenure at The University of Tennessee is granted in a particular academic [bold mine] unit (e.g., department, school) of a specific campus in a position appropriate to the faculty member's qualifications."

In the case of the discontinuation of the Pediatric Residency program, there was no prior formal consultation with the faculty of the department, college, and Faculty Senate; however, some meetings took place. At least as early as the fall of 1998, Dr. Caudle met with others about the Pediatric Residency program--especially about its costs. These sessions were with Mr. Bilbrey, Dr. Neutens, Dr. Moore, and others. Certainly, by fall 1999 Drs. Caudle and Moore were discussing the program's future and discussing funding problems with the departmental faculty (e.g., 29 September 1999). No formal, direct consultation with the departmental faculty took place until 26 January 2000, at which time Mr. Rice and Dr. Caudle (et al.) announced the closing of the Pediatric Residency program; thus, no full prior consultation with faculty groups (e.g., the UT Memphis Faculty Senate) took place prior to the program's discontinuation. It is not possible in March 2000 to untangle precisely who said what (or, worse, what various persons think they heard) at each meeting.

8. What is the status of the students [residents] relative to the discontinuation? Pediatric Residents normally serve for three years. Current third-year residents will end their employment this June. Current second-year residents have been told that UT will make every effort to insure that their residency experience is appropriate next year. Because the Pediatric residency program is to be closed effective July 2001, only first-year residents are directly affected. Of these six residents, four have positions in-hand for 1 July 2000, and the other two should have positions assured very soon. Nevertheless, on 26 January 2000, residents were told that UT would continue their residency if they were unable to relocate (although it was made clear that the residency experience would be diminished greatly by the closure announcement).

Normally, in the event of an academic program discontinuation, enrolled students are given ample time (usually eight years) to complete their studies, during which time the THEC Academic Inventory shows the affected program to be in "phase-out" status.

9. Are students [residents] currently in the program being appropriately accommodated? Yes. Although there is a "lame duck" phenomenon that sets in after the discontinuation announcement, I believe that the students are being treated appropriately.

10. What body has jurisdiction over such a termination or discontinuation? The UT Knoxville Faculty Senate has assumed it has jurisdiction over the program. The program is part of the University of Tennessee Health Science Center in Memphis, which is still accredited independently. The UT Knoxville Faculty Senate has no jurisdiction (nor has it claimed to have jurisdiction); the UT Memphis Faculty Senate is one of the constituencies (along with department and college faculty groups) with whom prior consultation should occur in the event of discontinuation of an academic program. Certainly, the UTK Faculty Senate has the right to speak out on issues which it deems to be important--such as termination of tenured faculty members without due process.

1. the administration had the authority to discontinue the Pediatric Residency program;

2. good practice suggests that prior consultation with faculty groups would have been appropriate, whether required by policy or not--especially in a case in which the faculty involved view their program as "academic";

3. while the administration has the authority to discontinue the Department of Pediatrics, termination of tenured faculty members may take place only after consultation with the faculty through appropriate committees of the department, the college, and the UT Memphis Faculty Senate, and every effort must be made to relocate faculty to positions for which they are qualified;

4. the administration must make certain that every Resident is given the opportunity either to complete the program or to be employed satisfactorily in another program; and

5. staff of the General Counsel's office and academic affairs staff should speedily and carefully examine the UT Tenure Policy and each campus Faculty Handbook, and should make the revisions necessary (1) to prevent future misunderstandings about controlling authority, (2) to define what constitutes an academic program and unit, and (3) to describe better the extent to which programs and their units are or are not separable.