Texas Faculty Ass'n v. University of Texas at Dallas

• Decision Date: 23 October 1991
• Docket Number: No. 90-1672,90-1672
• Citation: 946 F.2d 379
• Parties: 70 Ed. Law Rep. 377 TEXAS FACULTY ASSOCIATION, et al., Plaintiffs-Appellants, v. UNIVERSITY OF TEXAS AT DALLAS, A Public Body of Corporate Board Regents of the University of Texas System, Robert H. Rutford, President of the University of Texas at Dallas, in His Official and Individual Capacity, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 379

946 F.2d 379

70 Ed. Law Rep. 377

TEXAS FACULTY ASSOCIATION, et al., Plaintiffs-Appellants, v. UNIVERSITY OF TEXAS AT DALLAS, A Public Body of Corporate Board Regents of the University of Texas System, Robert H Rutford, President of the University of Texas at Dallas, in His Official and Individual Capacity, et al., Defendants-Appellees.

No. 90-1672.

United States Court of Appeals, Fifth Circuit.

Oct. 23, 1991.

Daniel A. Ortiz, Arlington, Tex., Patricia Polach, Robert H. Chanin, Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., for plaintiff-appellant.

Lou Bright, James C. Thompson, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Gen. Litigation Div., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before KING and JONES, Circuit Judges. ^*

KING, Circuit Judge:

The issue in this case of first impression is the scope of procedural due process guaranteed by the Fourteenth Amendment to faculty members at a public university who are terminated incident to a university president's decision wholly to eliminate the academic programs in which they teach. We hold that the summary judgment evidence establishes that the affected faculty members were given notice and a meaningful opportunity to be heard on the university president's decision to eliminate the academic programs, but not on his decision to terminate each faculty member's employment. We therefore affirm in part and reverse in part.

I.

The appellants were tenured faculty in two separate academic programs at the University of Texas at Dallas (UTD). Two, Professors Edwin Hammer and Kim Reid, taught in the Special Education program of UTD's School of Human Development. The other eight, Professors Joe Moore, John Warwick, Jerry Crowder, Guy Lanza, Aharon Netzer, Martin Katzman, William Waller, and William Cale, taught in the Environmental Sciences program of UTD's School of Natural Sciences and Mathematics. The events leading to the termination of each program will be separately considered.

A. The Special Education Program

In the wake of the sweeping Education Reform Bill passed by the Texas Legislature in 1984, and as part of an effort to "define a general mission for each public college and university in the State," two separate committees--the Teacher Education Review Committee (TERC), appointed by UTD's Vice President for Academic Affairs, Dr. Alexander Clark, and the Ad Hoc Committee, appointed by Dean Thomas Tighe of the School of Human Development--were established to conduct a comprehensive review of UTD's teacher education and certification programs. In March 1985, the Ad Hoc Committee recommended to Dean Tighe that all Special Education programs, except those recently discontinued by the State of Texas, be continued. One month later, TERC made the opposite recommendation to Vice President Clark:

Abolish the Program in Special Education if no substantive and conclusive evidence is provided that a significant reversal will occur in the declining enrollment patterns, and the programs can immediately become financially self-sustaining. This abolition would eliminate the degrees of [Bachelor of Science and Master of Science.] It would also eliminate the faculty positions not required to sustain the doctoral program in Human Development and Communication Science.

Dean Tighe and Professor George Fair, Director of the Special Education program, objected to the data relied upon and the recommendation advanced by TERC in separate memoranda to Vice President Clark.

After receiving these comments, Vice President Clark appointed yet another committee, the Council on Teacher Education Subcommittee, to study the issue. Its report, issued in February 1987, recommended that all undergraduate teacher education programs be eliminated, and ranked in order of priority the twenty-two graduate programs in teacher certification that it thought should be maintained. Programs in Special Education ranked eight, ten, eleven, twenty-one, and twenty-two. Dean Tighe, writing on behalf of the School of Human Development, agreed with a number of the CTE Subcommittee's recommendations, but took "strong exception" to the low priority given several of the Special Education programs.

Vice President Clark circulated the CTE Subcommittee report to the appropriate deans, who were charged with consulting with "appropriate members of their respective faculties," and then met individually with the deans involved with teacher education programs. In June 1987, Vice President Clark recommended to UTD's President, Robert H. Rutford, that UTD "eliminate its undergradu[a]te and graduate degree programs in Special Education, effective August 31, 1989." President Rutford agreed. On July 15, 1987, President Rutford wrote to the affected faculty members, informing them that, due to "declining enrollments and insufficient research support," the Special Education programs were to be phased out and that their positions would be terminated as of May 31, 1989.

B. The Environmental Sciences Program

In August 1986, Dean David Dunn of UTD's School of Natural Sciences and Mathematics (NS & M) recommended sua sponte to Vice President Clark that UTD eliminate NS & M's Environmental Sciences program. Dean Dunn stated that both enrollment and research grants had declined dramatically over the past decade, and that there was little prospect for improvement. Because this was so, the program was a "serious financial drain" on NS & M, and the impending transfer of the lucrative Computer Science program to UTD's Engineering School would exacerbate the problem. Because Environmental Sciences was, in Dean Dunn's words, "less central to the mission of NS & M than any other program," its continuation could be "justified only so long as it does not deny other programs the opportunity to achieve regional preeminence and national prominence.... In effect, the program is a worthwhile experiment that failed."

Vice President Clark agreed with Dean Dunn, and transmitted his recommendation to President Rutford. President Rutford concurred and drafted a letter to the Environmental Sciences faculty, but he was denied approval by the University of Texas system to eliminate the program because doing so might violate the terms of a gift to UTD.

In early 1987, Dean Dunn met with the Environmental Sciences faculty to discuss the program's deteriorating condition, but he did not announce that the program was in imminent danger of elimination. Dr. William Cale, head of the Environmental Sciences program, responded to Dean Dunn's concerns by memorandum, indicating that the decline in student enrollment had ceased, but Dr. Cale's analysis was invalid because it assumed that graduate students would be required to enroll for fifteen semester hours per term, rather than the customary twelve.

In July, Dean Dunn renewed his recommendation that the program be eliminated, and suggested that a research institute in environmental sciences be created to satisfy the terms of the gift. Again, President Rutford agreed, and he informed the Board of Regents that he wanted to phase out the program. This time his request was approved.

On September 19, 1987, Professor Cale telephoned President Rutford and asked that a study committee be appointed to review the Environmental Sciences program before the decision to eliminate it was final. President Rutford informed him that "there had been as much review of the decision as was necessary," unless "new information that was relevant to [the] decision" was brought forth. Two days later, President Rutford notified the Environmental Sciences faculty that the program was to be phased out and their positions terminated as of May 31, 1989.

On September 23, Dean Dunn met with the NS & M faculty to answer questions about the phase-out. On September 30, Professor Cale, on behalf of the Environmental Sciences faculty, wrote a letter to President Rutford raising a number of questions about how the phase-out would be implemented. President Rutford responded by letter one week later, answering Dr. Cale's questions and stating that "[i]f other questions arise I will be happy to address them."

On July 6, 1988, the Natural Sciences faculty sent a letter to President Rutford protesting UTD's failure to afford them pretermination hearings before unbiased members of the faculty, as provided for in section 6(12) of the Board of Regents' Rules and Regulations. President Rutford responded on August 1, saying that section 6(12) was inapplicable because the Environmental Sciences program was not being eliminated for reasons of financial exigency, concluding that "[i]f you have anything to present other than your contentions regarding procedural matters related to the decision, please contact Dean Dunn, Dr. Clark, or myself." The Environmental Sciences faculty responded in a one paragraph letter on August 5, making clear that they were in "complete and total disagreement" with the merits of the decision to eliminate the program.

On September 21, 1988, counsel for the appellants wrote to President Rutford demanding that appellants receive a full adversary hearing. The General Counsel for the University of Texas denied the appellants' demand by letter dated October 6, but stated that President Rutford, Vice President Clark, and Dean Dunn were available "to meet with any or all of the affected faculty members on an informal basis to discuss the facts that were considered in reaching this decision and allow them to demonstrate that those facts were in error." None of the appellants sought such a meeting.

By consent of the parties, this matter was transferred to a Magistrate for all proceedings below, including the entry of final judgment. The Magistrate granted summary judgment against appellants on their procedural due process claim, holding that (1) appellants had no right to be heard on the decision to phase out the academic programs; ...