Cedar Nordbye v. University of Memphis

03/20/2026

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 18, 2025 Session

CEDAR NORDBYE v. UNIVERSITY OF MEMPHIS

Appeal from the Chancery Court for Shelby County

No. CH-1345-3 JoeDae L. Jenkins, Chancellor

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No. W2024-01483-COA-R3-CV

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The University of Memphis initiated termination proceedings against a tenured faculty

member. An administrative hearing was held before a panel comprised of four other

tenured faculty members. The panel issued a report in which the majority of its members

found that the university had not proven adequate cause for the faculty member’s

termination. The report and a record of the hearing were provided to the university’s

president, who disagreed and signed a letter terminating the faculty member. The faculty

member sought review of the termination in the Shelby County Chancery Court. The

chancery court held that the university president did not have authority to issue a decision

contradictory to that of the faculty panel. The chancery court also held that the facts

contained in the record did not amount to clear and convincing evidence of adequate cause

for termination and ordered the faculty member be reinstated with backpay. The university

appeals. We reverse and remand for entry of an order consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and KRISTI M. DAVIS, J., joined.

Jonathan Skrmetti, Attorney General and Reporter, J. Matthew Rice, Solicitor General, and

Matthew Dowty, Senior Assistant Attorney General, for the appellant, the University of

Memphis.

Maureen T. Holland and Yvette H. Kirk, Memphis, Tennessee, for the appellee, Cedar

Nordbye.

OPINION

I. FACTS & PROCEDURAL HISTORY

In 2003, the University of Memphis (“the University”) hired Cedar Nordbye as an

assistant professor of art. As part of his duties, he was assigned the role of foundations

coordinator of the art department. The foundations program is a portion of art department

curriculum designed to introduce freshmen and sophomore level students to the basic

components of the study of art such as drawing, composition, and art theory. As

foundations coordinator, Professor Nordbye was required to teach classes focusing on

several different mediums of art. Additionally, he was responsible for scheduling, staffing,

developing curricula, and procuring supplies for foundations courses throughout the art

department. In 2009, Professor Nordbye was promoted to the role of associate professor

of art and received tenure in his position. However, beginning in 2015, Professor

Nordbye’s faculty supervisor, Professor Richard Lou, began to receive concerning reports

regarding Professor Nordbye’s behavior toward faculty, staff, and students. A string of

unfortunate incidents involving Professor Nordbye followed over the ensuing years.

Sometime during the spring semester of 2015, Professor Nordbye informed

Professor Lou that there was a possibility he would receive complaints stemming from his

use of the “N” word in class. A student later sent an email informing Professor Lou of the

incident. It appears that the “N” word was used during an in-class discussion pertaining to

race without an explanation as to why it was being used. Professor Lou orally counseled

Professor Nordbye regarding this incident and told him that the proper academic and

educational context needed to be provided when such issues were discussed, but no formal

discipline appears to have been instituted or complaint filed.

The next incident occurred in July 2015. Professor Nordbye was working as a

supervising professor for a student participating in an independent study course. At some

point, communication between the two broke down, and Professor Nordbye informed the

student that he would receive a failing grade unless certain steps were taken to rectify the

situation. The student reached out to Professor Lou to resolve the issue, requesting that the

three of them meet as he felt meeting with Professor Nordbye alone would “yield no

positive result.” Professor Nordbye responded and informed the student that he was going

to cede his responsibilities to Professor Lou and stated he did not wish to work or speak

with him again. Professor Nordbye stated by email, “I was an ally before you became so

disrespectful during this summer. I am no longer. This is a small art-world and I am not

the only one here who has very negative impressions about you.”

Shortly thereafter, an issue related to Professor Nordbye’s responsibilities as the

foundations coordinator arose. Professor Nordbye failed to have each of the foundations

level courses scheduled and assigned a professor until very shortly before the beginning of

the fall semester. This created “turmoil” and confusion throughout the department, as staff

and students were not able to adequately prepare for the semester. However, it appears

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that the necessary hires were eventually made.

The following December, another issue involving a second independent-study

student occurred. The student disclosed certain issues to faculty members regarding

Professor Nordbye’s treatment of him, and they advised him to file a grievance. He

informed Professor Lou of this and claimed that Professor Nordbye had made him feel

“utterly humiliated” through the “highly offensive, discriminatory, disrespectful nature” of

his treatment toward him. However, after discussing the matter with Professor Lou, the

student decided not to file a grievance.

Around this time, Professor Nordbye was also involved in an incident involving

what he described as an art “project.” In November 2015, Professor Nordbye silk-

screened1 the phrase “The University of Memphis is not a business” on doors and walls

around campus in response to a visiting artist being invited to lecture on campus. This

constituted damage to school property and thus violated school policy. The images were

removed, and Professor Nordbye was told not to silk-screen directly onto such surfaces in

the future.

Another, more public, incident took place in June 2016. On June 14, Professor Lou

was informed that a heated argument was taking place in the on-campus Subway restaurant.

Professor Lou went to the Subway and discovered Professor Nordbye and a student

shouting at one another. He was required to intervene and requested both participants to

send reports explaining the incident. The matter was eventually taken up by another

department of the University, but again, no formal punishment appears to have been

rendered to either party.

Shortly after this incident, Professor Nordbye was again reprimanded for posting

images around campus. On the night of June 30, 2016, Professor Nordbye taped silk-

screened images of firearms to doors and windows around campus in response to certain

Tennessee legislation that had recently gone into effect. Professor Nordbye posted the

images without permission when few students and faculty were on campus. This caused a

great deal of distress among the custodial staff who located the images the following

morning. Professor Nordbye was reprimanded and had a very contentious meeting with

the University’s provost. He eventually apologized for the incident.

Subsequently, as the beginning of the 2016 fall semester approached, Professor

Nordbye again had issues completing the scheduling and hiring of staff for foundations

area courses. This instance was more severe, as Professor Nordbye failed to hire a

professor prior to the beginning of the semester. This resulted in students attending a class

1

Silk-screening is an art technique in which ink is pressed through a mesh substance that has been

formed into a certain image. The ink is pressed through the mesh, often silk or another fabric, and transfers

the design onto foreign surfaces.

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with no instructor present. Eventually, Professor Lou “made the hires to fill the class” as

he “failed to hear from [Professor Nordbye]” about the issue.

Shortly thereafter, a second incident took place at the on-campus Subway restaurant.

A student reported that Professor Nordbye walked into the restaurant and began yelling at

the students waiting in line to stop eating there as they were wasting their money. The

student noted that Professor Nordbye was confronted by a Subway employee and

responded disrespectfully, stating that the art building was “his building and he [could] do

what he want[ed].”

Yet another incident took place on October 20, 2016. During that morning, the art

department conducted a “spontaneous” fire drill, which required staff and students to

evacuate the building. When a staff member exited the building, she noticed a large group

of students gathered by the building’s entrance, as well as Professor Nordbye and a student

sitting at a table. She announced that the students and faculty needed to move farther away

from the building, but Professor Nordbye shouted in response that, “[n]obody ha[d] to

move. A brick building isn’t going to spontaneously combust.” The faculty member

attempted to discuss the issue with Professor Nordbye, who responded, “[w]hatever,” and

refused to move.

Another problem arose in November 2016. As part of his responsibilities as the

professor of a drawing course, Professor Nordbye was required to recruit people to serve

as models for the students. A student complained to Professor Lou that his or her class did

not have any models available and he confronted Professor Nordbye about the issue.

Professor Nordbye responded to Professor Lou’s concerns by acknowledging the issue but

claiming that he had assigned the task to a graduate student who had “dropped the ball.” It

appears that models were eventually recruited.

In an attempt to put an end to these incidents, Professor Lou assigned Dr. Mike

Schmidt to serve as Professor Nordbye’s faculty mentor. This involved the pair meeting

frequently to discuss goals for the improvement of Professor Nordbye’s teaching and

behavior. The sessions focused largely on the use of rubrics in grading, in-class

organization, conflict avoidance, and time management. Despite this, concerning incidents

continued to take place.

In January 2017, Professor Nordbye brought the skeletal remains of a bird to his

drawing class as a model for the students. The remains were not preserved in accordance

with the University’s policy for such activities and there were concerns that they

constituted a biohazard. Professor Lou disposed of the remains and later exerted “great

effort” in order to convince Professor Nordbye to comply with policies regarding such

activities in the future.

On February 16, 2017, Professor Nordbye was arrested on campus, in the hallway

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directly outside of his classroom, while students were present. This arrest stemmed from

an incident that occurred between Professor Nordbye and his wife. He was charged with

domestic assault, but those charges were later dismissed. Professor Nordbye apologized

for his “dysfunction spread[ing] into the workplace in this disastrous manner” and agreed

to Professor Lou’s decision to have substitute professors cover his classes the following

week. Afterward, Professor Nordbye returned to his teaching duties. However, the

following month, Professor Nordbye informed Professor Lou that a new warrant had been

issued for his arrest but explained he planned to go “downtown and tak[e] care of it.”

However, he later determined that he would wait until the next day to do so, and proceeded

to teach a class that afternoon, during which he informed the students of the warrant’s

existence. The warrant appears to have been resolved the following day, a Friday, without

Professor Nordbye serving any jail time. However, Professor Nordbye was informed the

following Sunday that he would not be teaching his classes during the ensuing week. He

reacted angrily and argued with Professor Lou over the decision, and eventually, the classes

were cancelled.

Following this incident, Professor Lou met with the students enrolled in Professor

Nordbye’s various classes and asked them about their experiences. The notes reflect that

the students were largely critical of Professor Nordbye’s teaching. Students described him

as “harsh” and “caustic” when critiquing their work, claiming he characterized students’

work as “stupid or childish.” Many students also commented on Professor Nordbye’s lack

of organization and structure in class and many stated that they had not received any grades

for their work. Professor Lou compiled a report of these conversations, which he provided

to the University’s provost and the dean of the art department.

Meanwhile, Professor Nordbye’s arrest led to another unfortunate incident between

him and a student. The student created stickers featuring Professor Nordbye’s mugshot

and captioned “Cedar the beater.” The student then distributed the stickers around campus.

Professor Nordbye learned of this and used his university email account to threaten legal

action against the student unless he collected and turned in the stickers. Professor Lou

reprimanded Professor Nordbye for using his university email account to do this,

explaining that it violated the University’s policy regarding email use and any violation of

the student code which may have occurred should have been referred to the University’s

“Student Conduct” office.

In the wake of these incidents, a meeting was scheduled for April 10, 2017, in which

Professor Nordbye, Professor Lou, the dean of the art department, and the associate dean

of the art department were to conduct an annual faculty evaluation. Professor Nordbye

failed to appear at the scheduled time. The other participants waited for a time and then

called Professor Nordbye. Professor Nordbye answered and stated that he had “just woke

up.” He initially agreed to meet at a later time but then became angry. He began yelling

and eventually ended the call. He arrived later and met with the other participants. During

that meeting, the participants reviewed Professor Nordbye’s faculty evaluation, which

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noted he had failed to meet the minimum responsibilities of his position. The evaluation

noted that Professor Nordbye had agreed the previous year to work to improve his teaching

but “[t]hat did not happen” as he “continued to over commit[ ]” to extraneous activities.

The evaluation also noted that, in addition to the incidents outlined above, Professor

Nordbye had become “distracted [from his] primary job as teacher and coordinator” by his

decision to undertake mural painting and noted his failure to properly recruit staff for

various foundations positions and recruit models for his drawing classes. He was then

informed that he would not teach for the remainder of the semester and was permanently

removed from his position as foundations coordinator.

Professor Nordbye’s receipt of a faculty evaluation stating that he had “fail[ed] to

meet responsibilities” triggered certain protocol pursuant to the terms of the handbook

which required the creation of an ad hoc committee to review the evaluation. The

committee determined that Professor Lou had been fair when conducting his evaluation.

Accordingly, Professor Lou developed a performance improvement plan over the summer

and presented it to Professor Nordbye. Further, while his meetings with Dr. Schmidt had

paused while Professor Nordbye was not teaching and during the summer holiday, they

resumed in August 2017. Dr. Schmidt informed Professor Lou that Professor Nordbye

held a great deal of resentment and anger toward him and advised him not to meet with

Professor Nordbye alone.

Despite the existence of the performance improvement plan and his mentorship with

Dr. Schmidt, yet another concerning incident occurred in September 2017. Professor Lou

was informed that Professor Nordbye had removed a sink from his classroom. Professor

Lou went to Professor Nordbye’s classroom and discovered that the sink had indeed been

removed. Professor Lou confronted Professor Nordbye, and another argument ensued.

Shortly thereafter, Dr. Schmidt resigned as Professor Nordbye’s faculty mentor, explaining

that while some progress had been made in the use of rubrics and syllabi, he did not have

the training necessary to deal with Professor Nordbye’s personal issues. Professor Nordbye

was placed on administrative leave on October 9, 2017, pending the completion of a

fitness-for-duty examination.

The examination was completed during the following November. On December 22,

2017, Professor Nordbye was sent a letter informing him he had been deemed unfit for

duty and was being terminated. However, Professor Nordbye challenged the termination

in federal court. As a result of an undisclosed settlement between the parties, Professor

Nordbye returned to his position as a tenured professor pending a hearing. On December

3, 2018, the University sent Professor Nordbye a new letter informing him that it would be

pursuing his termination based on “adequate cause” pursuant to Tennessee Code Annotated

section 49-8-302, rather than fitness for duty. The letter alleged that Professor Nordbye

had engaged in conduct constituting the following types of adequate cause for termination:

(1) incompetence or dishonesty in teaching or research, (2) willful failure to perform the

duties and responsibilities for which the faculty member was employed; or refusal or

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continued failure to comply with the policies of the University, or department, or to carry

out specific assignments, when these policies or assignments are reasonable and

nondiscriminatory, (3) capricious disregard of accepted standards of professional conduct,

and (4) failure to maintain the level of professional excellence and ability demonstrated by

other members of the faculty in the department or division of the institution. See Tenn.

Code Ann. § 49-8-302. Professor Nordbye later received a letter informing him of the

specific instances of conduct that the University deemed to constitute adequate cause for

termination, as well as the date and time of an administrative hearing.

Meanwhile, the University formed the President’s Panel, a body of tenured faculty

members tasked with presiding over the adequate cause hearing. The panel consisted of

four tenured faculty members as required by the University of Memphis Faculty Handbook.

The handbook provides that the panel is to conduct an administrative hearing and

“determines if adequate cause for termination [of the faculty member] exists[.]” In

accordance with Tennessee Code Annotated section 49-8-303(a)(4), the University carries

the burden of proving that adequate cause exists by clear and convincing evidence.

Notably, the panel is not constrained by the traditional rules of evidence but “may admit

any evidence which is of probative value in determining the issues involved.” After the

hearing, the handbook requires the panel to generate a report “specify[ing] findings of fact

and [stating] whether the committee has determined that adequate cause for termination

exists.” The report is then provided to both the faculty member and the University’s

president. At the time of these proceedings, Dr. David Rudd was serving as the

University’s president. After considering the report and the record of the administrative

proceedings, the president is then charged with “reaching a final decision regarding

termination” and notifying the faculty member of that decision, “which, if contrary to the

committee’s recommendation, shall be accompanied by a statement of the reasons.” The

hearing on this matter took place over the course of several non-consecutive days between

March 2019 and May 2019. Both the University and Professor Nordbye were represented

by legal counsel.

The University called Professor Lou to testify. Professor Lou worked as a professor

in and chair of the University’s art department and was Professor Nordbye’s supervisor for

approximately ten years. Professor Lou discussed several of the incidents and behavior

that led to Professor Nordbye’s termination. First, Professor Lou testified regarding the

conflicts between Professor Nordbye and the two independent study students. As to the

first student, Professor Lou explained that Professor Nordbye sent several emails that

reached levels of “inappropriateness in regards to blaming the student” for the conflict that

had occurred. Professor Lou stated that he spoke to the student regarding the incident and

took over the course because Professor Nordbye stated he could no longer be impartial

when dealing with the student. Professor Lou stated that the student was cooperative and

completed his work without issue. He noted that the most concerning issue stemmed from

Professor Nordbye’s subsequent email. Professor Lou stated that this email was a “not so

veiled threat” by Professor Nordbye that was “completely out of the bounds of professional

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conduct.” He later explained that he viewed the comments as a threat that Professor

Nordbye “could impede an artistic career by this student” based on his negative

impressions and the “small art world” in which the student would work. Professor Lou

also discussed the second incident involving a student participating in an independent study

course. Professor Lou stated that he spoke to two other professors who had advised the

student to file a grievance against Professor Nordbye based on “how this student had been

treated” as it was “alarming.” Professor Lou explained that other faculty members

recommending a student take such a step was “highly unusual.” However, he met with the

student and apologized for Professor Nordbye’s behavior. He informed the student that he

would “facilitate” independent courses with other professors, and the student decided to

refrain from filing a grievance. He also discussed the argument Professor Nordbye had

with a student in the on-campus Subway restaurant. He noted that after intervening, he

asked Professor Nordbye and the student to each write a report about the incident. He

stated that the “reports weren’t written for a long time,” and the matter was eventually

turned over to another department of the University. He also recounted the incident in

which Professor Nordbye reported having used the “N” word during class. He stated that

Professor Nordbye informed him that “there might be some complaints” because he had

done so. Professor Lou stated that he explained to Professor Nordbye that while it is

permissible to discuss such topics and use such language in an educational setting, he

needed to provide the proper context for use of the term so that the students learned

something instead of merely “hear[ing] the word and be[ing] shocked.”

Professor Lou also testified regarding Professor Nordbye’s struggles to perform his

duties as a professor and foundations coordinator. He reviewed several emails from August

2015 that concerned Professor Nordbye’s issues scheduling classes and assigning staff for

foundations level art courses. Professor Nordbye was very late in returning the schedules,

and Professor Lou explained that this caused “a lot of turmoil” within the art department

as it prevented students and teachers from properly preparing for the semester. Professor

Lou stated that the following year, Professor Nordbye failed to hire staff for a certain class,

and the students met without a professor. Professor Lou described this as “illustrative of a

pattern that ha[d] always been there” with Professor Nordbye and explained that he

eventually had to hire the staff member himself. Professor Lou also reviewed a May 2016

email Professor Nordbye sent regarding his faculty evaluation for that year. In the email,

Professor Nordbye recognized that he had not reached his full potential as a teacher in part

due to “disorganization and also a spontaneity.” He acknowledged that he lacked focus in

his course work and intended to use more structure moving forward as well as reducing the

number of courses and committees on which he was to serve. Professor Lou noted that he

requested Professor Nordbye “no longer take on so many extracurricular activities” so he

could focus on improving his teaching and organization. Despite this, Professor Nordbye

later began “mural painting,” which, according to Professor Lou, “created havoc in [the art

department]” because Professor Nordbye could not or would not “keep his accounts

straight in regards to vendors charging” for materials used to create the murals. Professor

Lou noted this was after they had “talked about how he needed to not take on giant tasks”

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in order to focus on teaching effectively. Professor Lou stated that he later performed

classroom observations and reviewed student evaluations. Afterward, he determined that

Professor Nordbye had not met the goals set forth in the May 2016 email. He

acknowledged that he had assigned Professor Nordbye some committee work after the

discussion but explained he did so due in part to Professor Nordbye’s experience with a

particular art medium, and because the other committee was tasked with searching for a

foundations position which would fall under Professor Nordbye’s supervision. In addition

to these issues, he stated that Professor Nordbye missed several departmental meetings

without notifying him. He also noted the incident in which Professor Nordbye failed to

schedule people to serve as models for a drawing class. Professor Lou stated that these

incidents left him concerned Professor Nordbye was “not fulfilling his obligations as

foundations coordinator or as a colleague.”

Additionally, Professor Lou discussed the incidents in which Professor Nordbye

posted silk-screened images of a firearm around campus and silk-screened the phrase “The

University of Memphis is not a business” directly onto university doors and walls in

response to a guest speaker lecturing on campus. He stated that the firearm images had left

many custodial staff-members apprehensive and fearful. Nonetheless, Professor Nordbye

rationalized the behavior and did not “learn anything” from the incident. He stated that

while the images could be considered art, they were more so a “self-indulgent gesture

[rather] than a dynamic form of political protest.” As to the “The University of Memphis

is not a business” incident, Professor Lou stated Professor Nordbye did this without

permission and that it constituted damage to state property.

Professor Lou also discussed the events surrounding the fire drill incident. He stated

that the professor who had asked Professor Nordbye to move was the “floor-captain” in

charge of ensuring that a certain floor of the building was properly evacuated in cases of

emergency. He noted that Professor Nordbye made “flippant” remarks to the other

professor and refused to move. Professor Lou stated that this incident led him to seek

counsel from human resources in order “to get the appropriate tools necessary to help

support Professor Nordbye.” He then made the decision to assign Dr. Schmidt to serve as

Professor Nordbye’s faculty mentor in the fall of 2016. Nevertheless, Professor Nordbye

brought the skeletal remains of a bird into class. Professor Lou noted that the remains

being brought to campus outside the University’s regulations rendered them a biohazard.

However, he explained that the issue did not stem from Professor Nordbye bringing the

remains in as a model, but rather from his failure to follow protocol and safety guidelines

when doing so. He noted that Professor Nordbye sent several “belligerent” emails after

the incident, which were a source of disappointment, and stated it took “great effort” to

convince him to agree to comply with the University’s policy. Professor Lou maintained

that Professor Nordbye argued with him about the incident by claiming that bringing in the

remains “was safe because he had put [the remains] in a condom.”

Professor Lou also discussed the events surrounding Professor Nordbye’s arrest and

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the arrest warrant issued the following month. He stated that after Professor Nordbye’s

first arrest, he told him to take some time away and allow substitutes to teach the following

week. Professor Nordbye agreed and was apologetic for the incident. However, Professor

Lou was greatly concerned by Professor Nordbye’s later decision to teach his class despite

his knowledge of a second active warrant for his arrest. He deemed it to be “completely

unprofessional [and] inappropriate” to announce to his students that the warrant existed

and stated it thwarted the art department’s goal of creating a “nurturing learning

environment.” Further, he and Professor Nordbye argued when he scheduled substitutes

for the following week. He stated that he told Professor Nordbye multiple times to “just

take the time off,” but he responded “nope, I’m coming” and stated if a substitute faculty

member did attend class he would “co-teach.” This resulted in the classes being cancelled.

Professor Lou stated that afterward, he went to Professor Nordbye’s classes to obtain

feedback from students. The students consistently indicated that they had experienced

issues in the class and had learned little. He discovered that many had not been assigned

grades at what was a very late point in the semester. He explained that this was “highly

unusual” and violated a department policy that required foundations students receive a mid-

term grade. However, on cross-examination, Professor Lou acknowledged having received

copies of several emails from Professor Nordbye in which he informally assigned grades

to various students who had inquired about their grades. He later acknowledged that he

had not gone “back to look to see what had been submitted in any course ware” for

Professor Nordbye’s courses.

Professor Lou noted that, in the midst of Professor Nordbye’s arrest and subsequent

warrant issue, a student created stickers depicting Professor Nordbye and the domestic

incident leading to his arrest. He explained that the email Professor Nordbye sent

threatening legal action was sent from his university address. He had to involve the

University’s legal department to explain the “power dynamics” involved as well as the

creation of a perception “that [his] position was the University’s position.” Shortly

thereafter, Professor Nordbye overslept the meeting scheduled for April 10, 2017.

Professor Lou stated that when they called and woke Professor Nordbye up, he became

very angry and “yelled at us over the phone and then he slammed the phone or he hung up

on us.” However, he stated that when Professor Nordbye later came to the rescheduled

meeting, he “behave[ed] himself” and asked “[w]hat do I need to do to keep my job?”

Professor Lou responded that he needed to listen to him as the department chair, and he

then informed him that he would not teach his classes for the remainder of the semester

and was being removed from his position as foundations coordinator. Professor Lou stated

that he later created a performance improvement plan, but when Professor Nordbye was

presented the plan, he “appeared to be confused” as to why he was receiving the plan and

then “tosse[d]” the plan back to Professor Lou stating, “this doesn’t really pertain to me.”

However, he later accepted the plan.

Lastly, Professor Lou discussed Professor Nordbye’s removal of the sink from his

classroom wall. He first learned of the incident because another faculty member reported

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that Professor Nordbye had “bragged” about doing so. He noted that Professor Nordbye

had previously engaged in similar behavior and accordingly, his performance improvement

plan had included specific language stating he was to have respect for property. He

maintained that when he confronted Professor Nordbye about the sink, they argued.

Professor Nordbye claimed that he had the right to remove the sink because it was in his

classroom. Professor Lou responded that the sink was state property and therefore,

Professor Nordbye had “no authority to remove” it. Professor Lou stated that Professor

Nordbye later admitted to removing the sink in part because he was angry at him. On

cross-examination, Professor Lou acknowledged that faculty do make physical alterations

to their classrooms from time to time and he had been involved in some such alterations.

However, he maintained that he had done so “after [he] sought permission.”

Dr. Karen Weddle-West was the next witness called to testify. She worked as the

provost for the University of Memphis at the time in which the incidents involving

Professor Nordbye occurred. She discussed the incident in which Professor Nordbye

posted images of firearms around University buildings. She stated that it took “hours” for

Police Services to determine who had posted the images but eventually, “they concluded

that Cedar had placed the guns” and asked her to “have a conversation” with him about the

incident. She stated that the images caused great fear among the custodial staff who had

discovered them. She met with Professor Nordbye about the incident and noted the lengths

to which he went to justify his actions. The two had a long and contentious conversation,

and she informed Professor Nordbye that he needed to apologize to those who were

alarmed by the images. She also noted that the incidents involving Professor Nordbye had

caused students to become distressed, and the performance improvement plan had been

designed to fix those issues. She stated that students began to feel “uncomfortable” with

Professor Nordbye because he demeaned and belittled their work, did not grade properly,

and failed to stay “on task.” She stated that students felt “they weren’t getting what they

paid for, which was to learn in a healthy, helpful, learning environment.” She also

recounted the incident in which Professor Nordbye removed the sink from his classroom.

She described this act as “incredulous.” She noted that Professor Nordbye had been “told

on several occasions, not just by [her] but by others the University is not [his] house” and

he could “put up gun prints all over [his] house but [he] [could not] do it here.” She later

explained that Professor Nordbye had previously been told that he needed to seek

permission prior to removing things from his classroom and that “[e]very other faculty

member, every other staff member seeks permission” before doing such things. She stated

that, in her opinion, Professor Nordbye’s presence on campus posed a danger and threat of

destruction to the academic or operational processes of the institution.

The University also called Dr. Tom Nenon to testify. Dr. Nenon took over as the

University’s provost after Dr. Weddle-West and signed Professor Nordbye’s termination

letter while she was on sick leave in December 2017. Dr. Nenon explained that he did not

have much personal knowledge regarding the incidents involving Professor Nordbye, but

he was familiar with Professor Nordbye’s student evaluation of teaching effectiveness

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(“SETE”) scores. He explained that these are voluntary “student surveys” that can be used

to identify and correct perceived deficiencies. He stated that Professor Nordbye’s SETE

scores struck him “as particularly low for the University of Memphis.” He later explained

that SETE scores can be a reliable measure of a professor’s performance so long as they

are placed into the proper context and patterns are reviewed rather than individual scores.

Later, the University called Karen Bell, the University’s director of web and mobile

services, to testify regarding the comments written by students who had completed SETEs

for Professor Nordbye’s classes. She stated that she had reviewed the SETE reports and

had never seen a set of comments that were so “consistently critical” of a professor. Many

of the comments concerned Professor Nordbye’s interactions with students. One comment

noted that Professor Nordbye would “bicker with students” while another stated that his

“immaturity made this class unbearable” and noted that “[g]irls cried.” Several comments

pertained to Professor Nordbye’s lack of organization. Some of these included comments

stating that Professor Nordbye would arrive at class and “say he didn’t know what we were

doing that day” or would discuss “tv shows, cats, and very unimportant topics.” Another

such comment noted that Professor Nordbye often went on “tangents that didn’t really have

anything to do with the course.” Many students commented on his overly harsh and

arbitrary criticisms, while others noted a lack of grades. One student noted that on a day

that was set aside for critiquing student work, they instead “pulled a cherry picker up a

flight of stairs and made carrot juice.” Another student noted that even when critiquing

student projects, Professor Nordbye would lose focus and the class would “NEVER get

through seeing every student project because [Professor Nordbye] stray[ed] off topic when

talking about one project.” Another student stated that “[c]ritiques were terrible. Too long

– several days – and we didn’t even get to everyone.” The student also noted that many

students “made projects only to please [Professor Nordbye’s] weird idea of art” and “were

scared of being put down in front of their classmates” as Professor Nordbye “would say

really rude and hurtful things” including telling “one girl she should never paint again.”

Although the comments were not exclusively negative, the negative comments outweighed

the positive, and many students who wrote positive comments would nonetheless comment

on his issues as an instructor.

Professor Nordbye’s faculty mentor, Dr. Mike Schmidt, also testified. He noted that

he had never served as a mentor to a tenured faculty member before because the department

“never had in the 25 years [he had worked there] a tenured faculty member who was in a

situation where his employment was in peril.” However, he served as a mentor to junior

faculty members on various occasions. He generated a plan with the help of Professor Lou

that was intended to help Professor Nordbye improve his teaching and behavior. He served

as Professor Nordbye’s mentor from January 2017 until October 2017 and created a

mentoring plan outlining the objectives of the relationship. He noted that Professor

Nordbye did make some improvements and implemented a grading rubric. However,

concerning incidents persisted. He stated that he often had to remind Professor Nordbye

not to discuss his personal life during his classes, and they often discussed his issues

balancing his teaching and foundations coordinator responsibilities with his various

- 12 -

extracurriculars such as working on mural projects. He noted that Professor Nordbye had

a tendency to take on too many projects and did not manage “scope creep” properly.2 He

explained that Professor Nordbye was removed from his coordinator position before they

were able to make any substantive progress on certain goals pertaining to that role.

Afterward, Professor Nordbye’s frustrations with being removed from his coordinator

position “spilled over on the mentoring sessions.”

Dr. Schmidt stated that his plan also focused on helping Professor Nordbye avoid

conflict. One strategy he attempted to implement involved Professor Nordbye sending him

emails prior to sending them to the intended recipient so Dr. Schmidt could make

suggestions. However, Professor Nordbye only did this once and began sending Dr.

Schmidt emails only “after the fact.” Dr. Schmidt stated that Professor Nordbye would

acknowledge his responses were often “over the line.” As for face-to-face conflict,

Professor Schmidt focused on the arguments that Professor Nordbye would engage in with

Professor Lou but he “just couldn’t get anywhere with it.” On one occasion, he assigned

Professor Nordbye a “planned behavior exercise” that he completed prior to their meeting.

However, he later failed to complete similar exercises.

Professor Schmidt stated that Professor Nordbye would become very angry when

discussing Professor Lou. As a result, he sent Professor Lou an email advising him to

“proceed cautiously” when meeting with Professor Nordbye and to not do so alone. He

stated that, at one point, Professor Nordbye informed him he struggled with anger

management. He recounted one incident in which Professor Nordbye had been asked to

author a description of the foundations program for the University’s website. He wrote a

“real copy” that he sent to the web administrator but also wrote another version riddled

with criticisms of the art department and self-aggrandizing statements, which he sent to

Professor Lou. Additionally, Professor Lou had asked to be sent the description first but

Professor Nordbye “bypassed him” and sent it directly to the web administrator. Dr.

Schmidt stated that these events clearly demonstrated Professor Nordbye was not avoiding

conflict or communicating professionally. He determined that they were making no

progress and informed Professor Lou that he wished to resign.

Professor Nordbye also testified. Professor Nordbye acknowledged that complaints

regarding his teaching style persisted throughout his time in the art department. He stated

that at one point, the department chair before Professor Lou told him he that he should

consider working elsewhere because the students at the University were not “going to

appreciate what [he was] doing.” He stated that he came to understand this meant his

teaching style would be more appreciated at a liberal arts college where the students wanted

“rigor” and “philosophy” and would “eat [it] up.” He found that as “a lot of students are

coming from Memphis high schools, [they were] not used to it[.]” Based on these

2

Dr. Schmidt described scope creep as projects “taking on a life of their own and getting bigger

and bigger and bigger” to the detriment of a person’s additional responsibilities or projects.

- 13 -

observations, he came to realize that he “would have some mixed results from student

responses” and “students wouldn’t always be happy to do the things that [he] was asking

them to do.” He later stated that there were some students who would not “want to go there

or [weren’t] willing to have faith that [his] rambling or [his] improvisation or [his]

spontaneous ideas [were] in this search of something higher, they can be frustrated by it.”

He claimed that this is why he appeared to be disorganized but also claimed Professor Lou

encouraged him to maintain this style. However, he admitted that Professor Lou did ask

him to address his class organization. He felt that his time with Professor Schmidt had

largely remedied those issues and he had been “on top of [his] game” immediately prior to

his termination. Professor Nordbye also discussed his grading policy. He stated that he

felt grades were often “insufficient” to evaluate a student’s progress. However, he

implemented a new rubric after he began working with Dr. Schmidt that he felt helped

mitigate those issues. He also stated that he never failed to have grades turned in, though

he did “de-emphasize” them and knew of students who wished he would grade more often.

He noted that another professor in the department did not grade until the end of the semester

and he claimed the decision to do so was a component of academic freedom. He also took

issue with Dr. Lou’s decision to speak to students after his arrest, claiming that it was not

fair to do so. He also believed that the students’ responses were not indicative of his normal

teaching abilities as it came during a turbulent time for him personally.

Professor Nordbye acknowledged that he was encouraged to “cut back” on certain

activities. He agreed to do so but claimed that Professor Lou assigned him classes outside

of his practice area despite these conversations. However, he was not assigned any classes

outside his area after 2016. Likewise, he agreed to reduce his committee work, but

Professor Lou subsequently assigned him to multiple committees.

Professor Nordbye also discussed his mentorship with Professor Schmidt in detail.

He stated that Professor Schmidt helped him overhaul his grading rubric and his syllabus

and also recommended he conduct a student survey. He noted that these items were all

helpful but there were “negative” aspects of the relationship. This included Dr. Schmidt’s

reactions to his attempts to discuss his “emotional life,” which “led others to have concerns

that were unnecessary.” He claimed that he sent several angry emails to Dr. Schmidt as

part of the email review system, but they were never intended to go to Professor Lou, only

serve to get his feelings “off his chest.” He explained that his anger at Professor Lou “was

the kind of anger that one has towards a family member where there is love” because he

viewed him as family. He further stated that the anger issues he referenced to Professor

Schmidt really consisted of an “indignation streak” because he detested “injustice.” He

clarified that he was not emotionally unstable but noted a perceived injustice would

“provoke[ ] intense feelings and sometimes intense responses.” He claimed that he had

been under the impression the information he shared with Dr. Schmidt would be used to

help “channel” those feelings into “professional and . . . functional and productive

communication” between himself and others.

- 14 -

He discussed the incident involving the posting of images of a firearm around

campus and explained that it had been a protest of certain legislation enacted by the

Tennessee Legislature. He claimed that it had been an art “project” and he had not signed

the images to prevent attention from being placed on himself. He also claimed that he had

not been hostile or belligerent during the ensuing meeting with Dr. Weddle-West. He

viewed the discussion as “productive” but did acknowledge that he could “understand how

[Dr. Weddle-West] might have seen it as disrespectful or somehow threatening.” He

claimed that he had not intended for the images to be threatening but acknowledged there

had been some “unintended consequences” rendering the “project” less successful than

desired. He apologized to the custodians and police services, but said “it didn’t seem like

anyone thought it was a big deal.”

Professor Nordbye also discussed the events surrounding his classroom arrest and

the second arrest warrant issued the following month. He stated that, when he was arrested,

he did not know the warrant existed. He stated that the arrest stemmed from a conflict with

his wife. He was arrested “in the hallway outside [his] classroom but with the door open

and [his] students in the classroom.” He did not know that he was going to be arrested,

and stated that had he known, he would have turned himself in and avoided the

“embarrassment . . . and disruption that took place.” He explained that the second warrant

was issued based on the violation of a restraining order. He stated that the violation

stemmed from his sending gifts to his son at the marital home. He claimed that he did not

realize this would violate the restraining order but was later informed by his lawyer that

the “prosecution in that criminal case . . . had said that there might be a new charge” against

him. His lawyer advised him to monitor the sheriff department’s website. He did so, and

eventually a warrant for his arrest was issued. At that point, he informed Professor Lou

that he intended to go downtown that day to resolve the issue. However, his lawyer later

advised him to wait until the next day, so he taught his afternoon class instead. He claimed

that someone from Dr. Schmidt’s office called him into the hallway to discuss the issue

during his class. When he returned to class he explained the situation to the students. He

stated that he told the class because he needed to “manage the emotional chemistry of the

room.” He went and “took care of” the warrant the next day, which was a Friday.

However, he did not speak with Professor Lou until the following Sunday, at which point,

he learned that substitutes had been scheduled for his classes throughout the ensuing week.

He stated that he “really objected” to this as it triggered “that indignation or the feeling of

injustice” as he “really felt like [his] rights as a faculty member were being impinged upon

by the decision to have those substitutes[.]” He stated that he wanted the class to succeed

and to avoid interruptions and also to demonstrate “how strong [his] teaching [could] be.”

Professor Lou later cancelled the classes. He was subsequently informed that he would not

be teaching the remainder of the semester.

Professor Nordbye noted that the performance improvement plan was created over

the following summer and stated he welcomed the plan as it contained many goals related

to things upon which he had already started working and it could “ultimately be useful.”

- 15 -

However, there were some items he felt “might not be as specifically useful for [his]

development.” Nevertheless, he contended that he complied with the plan by (1) reflecting

on his goals, (2) increasing his email presence with students, and (3) responding more

quickly to faculty emails. He stated that these efforts helped resolve many of the issues

that had hindered him and he “experienced an elation” during the fall of 2017 that made

him “feel more confident and happier in [his] job than [he] been in a long time.” He stated

that he had begun to feel more “ownership” of the campus and University and wanted to

help improve them. He claimed that, as a result, he decided to remove the sink in his

classroom in order to “have more space for teaching.” He explained that the sink at issue

was not in use because the room contained another sink that was “industrial” and more well

suited for cleaning art supplies. He also explained that he had construction experience

working on his father’s crew and for charitable organizations. He claimed that he had done

similar things to other portions of the building but noted he had obtained permission to do

so. He stated that he was not sure where the rumor that he removed the sink out of anger

came from, but when Professor Lou confronted him, he apologized. However, he was then

placed on administrative leave pending a psychological evaluation. He stated that he was

eager to complete the evaluation and return to teaching, but the evaluation did not occur

until November. Shortly thereafter, he was informed that he was no longer fit for duty and

was being terminated. This resulted in his initial legal challenge, his later reinstatement,

and the initiation of these proceedings.

Professor Nordbye gave his perspective on several of the other incidents listed in

the termination letter. He began with the incident in which he yelled at the students in the

on-campus Subway that they should bring food from home and the ensuing confrontation

with a worker. He stated that he noticed students would complain about not having money

for art supplies but would often eat at Subway during class breaks. He said it struck him

that he did not eat out often while in college and became “inspired” regarding the campus

food system based on a book he read. He began discussing new food system options with

officials from the University. He stated that he began to make soup at home and passed it

out on campus for free and later told his students to collect magnolia leaves and attempt to

sell them to people as an economics project. He did not explain how passing out soup or

the magnolia leaves project related to his confrontation in the campus Subway or recount

what took place or was said. Next, he discussed bringing the remains of a bird into his

classroom. He stated that he noticed birds dying on a particular property adjacent to his

local park due to a piece of plywood leaning against a window “so the whole window was

covered with bird skeletons.” He notified the property owner to try and have the condition

changed. He stated that he “retrieved those bird skeletons” and brought “the skull into the

class to talk about [his] effort to save th[o]se birds” and “partly as a way of modeling to

[his] students a way that our artistic activities can spill into our sort of civic involvement

or our care for animals or the environment.” He did not deny having failed to follow the

University’s procedures for bringing such models onto campus. Next, he discussed the

email exchange with a student that Professor Lou described as a “veiled threat.” He stated

that he did not intend for that message to be a threat but a warning “that some of his attitudes

- 16 -

[were] going to cause . . . harm in his interactions with his peers in the future[.]” As for

the second independent study student, he merely claimed that he was “mystified” by what

the problem was and did not “know what he took offense to.” He also discussed his failure

to recruit models for a drawing class. He admitted that he failed to do so but stated it was

also the fault of the graduate student to whom he had delegated the task. He stated that

they were later able to rectify the situation. As for the fire drill incident, he did not deny it

but merely claimed that the professor who had asked him to move was “a person who ha[d]

often made sweeping statements and overstated things to an extreme degree to make people

seem like they were transgressing” and would look “for anything to make a fight.” He also

discussed his use of a university email address to threaten a student with legal action. He

stated that his only goal had been to convince the student to stop distributing the stickers.

He stated that he later understood why it was problematic for him to use his university

email to do so and admitted he had “been a bit naïve about university email prior to that”

as “there could be a voice of authority that comes with an email that is sent from that

system[.]”

Professor Coriana Close also testified. She had worked as a photography professor

in the art department since 2011. She was asked whether professors had ever made any

changes or improvements to art department space. She stated that she had previously

altered her own office by painting it yellow. Additionally, she recounted an occasion upon

which Professor Lou tasked Professor Nordbye with “putting up homasote all over the

building” using a “driver” to “drive long screws” into cinderblock walls.3 She further

claimed that the staff had never been informed of or practiced what to do during a fire drill.

She similarly claimed that she was unfamiliar with procedure for furnishing classrooms

with animal remains as models, but claimed it was a common practice. She had not found

it “odd” that Professor Nordbye had done so. She stated that there were several human and

animal skeletons available for drawing. She recounted one incident in which a student had

created “a small installation in the sculpture building in which she had an entire rat king,

and that’s when rats all died tied up together because . . . they were jammed up.” She stated

that, “[n]obody said anything” about the sculpture violating the University’s policies.

On July 1, 2019, the President’s Panel issued its report. The report stated that the

panel “found, in a vote of 3 to 1 in favor of Professor Cedar Nordbye, that there [was] no

adequate cause for termination.” The majority further “recommend[ed] to the President

that in lieu of termination, Professor Nordbye be placed on a three-year performance

improvement plan as described in [the handbook].” The remaining member opined that

adequate cause had been proven and termination was an appropriate punishment. The

panel submitted its report to President Rudd, who reviewed it and the record. On August

22, 2019, President Rudd signed a letter informing Professor Nordbye that “[a]fter a

thorough evaluation of the matter, [he had] determined that there [was] adequate cause for

termination” based on a willful failure to perform the duties and responsibilities of a faculty

3

Homasote is a brand of fiberboard used for displaying art.

- 17 -

member, a capricious disregard of accepted standards of professional conduct, and a failure

to maintain appropriate levels of professional excellence and ability.

Shortly thereafter, Professor Nordbye filed a petition for judicial review in the

Shelby County Chancery Court. The petition sought review “pursuant to TCA 49-8-304

[of] the University’s wrongful and illegal final decision to dismiss/terminate Professor

Nordbye’s tenure.”4 The petition also claimed that President Rudd’s decision to override

the President Panel’s decision was contradictory to the terms of the handbook and violated

Professor Nordbye’s due process rights. The University maintained that adequate cause

had been proven by clear and convincing evidence. The University also argued that

Professor Nordbye’s procedural arguments were without merit because President Rudd

was permitted to make a decision contrary to that of the panel, but even if he had not been,

any error would be cured by de novo review in the chancery court.

Early in the proceedings, the chancery court entered an order noting that it would

accept additional evidence proffered by the parties. The University submitted several

additional exhibits that each pertained to the incidents discussed throughout the

administrative hearing. These exhibits included several emails demonstrating Professor

Nordbye’s struggles to complete his assigned work or reduce his extracurricular activities.

The first email was sent from Professor Nordbye to Professor Lou while trying to schedule

a meeting with President Rudd. In the email, Professor Nordbye stated that he was going

to “try to put a period of belligerence behind [him].” Another strand of emails was

exchanged after Professor Lou asked Professor Nordbye to reduce his committee work. In

one email, Professor Nordbye stated that he “did not take [Professor Lou’s] advice to be

an order.” Professor Nordbye apparently refused to even reduce his committee work by

taking reduced roles while staying involved with committees. One email sent by Professor

Nordbye in August 2016 featured him seeking to form a new committee “with a mission

to bring public artworks into the neighborhoods surrounding the University of Memphis.”

Several emails also demonstrated Professor Nordbye’s disrespectful demeanor

towards Professor Lou and other members of the art department. One set of emails

pertained to Professor Nordbye’s failure to have teachers assigned to various foundations

classes. When Professor Nordbye responded, he claimed that he had several events

ongoing and issues with the electricity at his house. Professor Lou’s response noted that

he and another department member had scheduled a meeting with Professor Nordbye and

waited more than 30 minutes for him to arrive, but he never appeared or informed them he

would not be attending. Professor Lou informed Professor Nordbye that, in his view, his

issues “aside from the personal” involved a “conflict of priorities.” He explained that

4

The petition levied additional claims based on the violation of Professor Nordbye’s constitutional

rights and breach of contract. However, the University filed a motion to dismiss these “ancillary” claims,

and the parties eventually consented to the entry of an order by the chancery court that dismissed these

claims without prejudice.

- 18 -

Professor Nordbye’s primary responsibilities involved teaching and supervising

foundations level art courses. He noted that he had received an invitation to join Professor

Nordbye’s new committee, and maintained this was an example of Professor Nordbye

“spreading [him]self so thin” that he could not effectively carry out his primary job

functions. Several other emails were included that demonstrated Professor Nordbye’s

contentious interactions with other department staff. In one such email, Professor Nordbye

and another professor had a disagreement regarding the use of classroom space. The

professor told Professor Nordbye that, while there were problems with the foundations

program, he should not blame his room assignment and “[m]ake better use of the facilities”

that were already available. Professor Nordbye responded: “[p]lease retire.” Professor

Lou reprimanded Professor Nordbye and told him that “this needs to stop” because such

“rhetoric between colleagues [was] unacceptable[.]” Professor Nordbye responded:

“[w]hy?” Afterward, Professor Lou directed Professor Nordbye to not attend a faculty

meeting as it would require a “high level of collegial interaction.” Professor Nordbye

responded: “[a]wesome, thank you!” Professor Nordbye later sent an email apologizing.

He acknowledged that his behavior had not been “professional” and “realize[d] that it was

also toxic behavior and that it was an immature response to serious issues[.]” Additionally,

an email was submitted concerning Professor Nordbye’s removal of the sink. Professor

Nordbye apologized for his reaction and stated that he understood “how [Professor Lou]

would be upset about it on several levels.” He noted that it “ma[de] sense” for the incident

to cause concerns “of a continuing pattern of transgressing boundaries.” He stated that he

“knew that [he] was crossing a boundary with the sink thing” and understood his mistake.

Meanwhile, Professor Nordbye sought to depose President Rudd regarding his

decision to override the decision of the President’s Panel. The University objected,

claiming it was unnecessary as the University’s policies “speak for themselves.” The

chancery court determined that, while President Rudd’s testimony would likely not be

relevant, the testimony of a designee might, and that “testimony on those topics [could] be

obtained through a deposition pursuant to Tenn. R. Civ. Pro. 30.02(6).” As a result, Dr.

Thomas Nenon was deposed. He was still serving as the University’s provost and as its

executive vice president. Dr. Nenon noted that he had spoken to President Rudd while he

was considering the panel’s report. He stated that President Rudd made an independent

decision regarding termination, but he did generally take the opinions of others into account

when making such decisions. He stated that the panel had only been empowered to make

a “recommendation,” but not a “decision.” He stated that the report was considered very

seriously, but the ultimate power to manage the university and ensure safety was the

responsibility of the president and could not be delegated. He stated that he spoke to

President Rudd about his reasoning, and his disagreement with the panel majority stemmed

largely from the view of certain actions as performance issues whereas President Rudd

viewed them as misconduct. He stated that President Rudd “recognized that the University

[could] not simply allow abusive behavior for three years while encouraging the faculty

member to please stop it” because the behaviors at issue were “unacceptable and needed

to be stopped immediately[.]” He noted that performance issues and misconduct are

- 19 -

addressed in different ways. However, he acknowledged that President Rudd was aware

of and considered incidents and information not contained in the administrative record.

The hearing in chancery court took place over the course of two days in February

2023. Both sides presented additional legal arguments. Additionally, the University was

permitted to recall Professor Lou in order to provide additional testimony. However,

Professor Nordbye’s counsel levied several successful objections during this testimony that

left little if any relevant information admitted. The chancery court specifically stated that

it would not permit the “taking of any evidence at this point that [went] to what may have

occurred after the termination[.]” As a result, the testimony was largely excluded as

evidence.

More than one year passed without a final order being entered. At that point

Professor Nordbye filed a motion requesting the chancery court to enter a ruling. The

chancery court entered an order reinstating Professor Nordbye and awarding him backpay

on August 28, 2024. The chancery court found that the termination violated Tennessee

law and the faculty handbook. The court held that President Rudd did not have the

authority to overrule the decision of the President’s Panel and also held that there was not

clear and convincing evidence contained in the record to support a finding of adequate

cause based on any of the grounds raised. The University filed its appeal.

II. ISSUES PRESENTED

The University has presented the following issues on appeal, which we have slightly

reframed:

1. Whether the chancery court erred in concluding that the University failed to

establish adequate cause for terminating Profession Nordbye based on a

capricious disregard of accepted standards of professional conduct pursuant to

Tennessee Code Annotated section 49-8-302(5).

2. Whether the chancery court erred in concluding that President Rudd lacked the

authority to make an adequate-cause determination.

For the following reasons, the judgment of the chancery court is reversed and remanded.

III. DISCUSSION

A. Standards Applicable to Tenure Termination Proceedings

We begin by describing the basic procedures of the termination proceedings at issue,

as well as the applicable standard of review. Tennessee law provides for the establishment

of “a state university and community college system,” which is composed of several

member universities, community colleges, and state colleges of applied technology. Tenn.

- 20 -

Code Ann. § 49-8-101(a)(1). The University is a member of this “board of regents” system.

Tenn. Code Ann. § 49-8-101(a)(2)(A). The system provides for termination of tenured

faculty members based on “adequate cause” and sets forth certain minimum procedures to

be put in place by member institutions to ensure due process for the faculty member whose

termination is sought.5 Tenn. Code Ann. §§ 49-8-302–303. When a faculty member

employed at a member university is terminated for “adequate cause,” such cause must be

supported by “clear and convincing evidence in the record considered as a whole[.]” Tenn.

Code Ann. § 49-8-303(a)(4). In order for evidence to be clear and convincing, it “must

eliminate any serious or substantial doubt about the correctness of the conclusions to be

drawn from the evidence.” Stephens v. Roane State Cmty. Coll., No. M2001-03155-COA-

R3-CV, 2003 WL 21918758, at *8 (Tenn. Ct. App. Aug. 12, 2003) (citing Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992); O’Daniel v. Messier, 905 S.W.2d 182,

188 (Tenn. Ct. App. 1995), superseded by statute on other grounds, Tenn. Code Ann. §

36-1-113(g)). “Such evidence should produce in the mind of the fact-finder a firm belief

or conviction as to the truth of the allegations sought to be established.” Id. (citing

O’Daniel, 905 S.W.2d at 188; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App.

1985)).

According to both the procedures required by Tennessee Code Annotated section

49-8-303, and those set out in the handbook, a tenured faculty member whose termination

is sought based on adequate cause must be notified of the charges in writing and provided

an administrative hearing in which he or she may be represented by counsel. Tenn. Code

Ann. § 49-8-303(a)(1)-(2). Both sides are permitted to submit evidence and to examine

and cross-examine witnesses. Tenn. Code Ann. § 49-8-303(a)(5). The statute also permits

the member institution to promulgate additional procedures deemed necessary and “may

provide for review of the decision by the board or its designee based upon the record.”

Tenn. Code Ann. § 49-8-303(b). The handbook requires the panel to generate a “committee

report” in which it makes findings of fact and “shall state whether the committee has

determined that adequate cause for termination exists, and if so, the specific grounds for

termination found.” The handbook then requires the president to review the panel’s report

and the record, and “[f]ollowing his or her review, the president shall notify the faculty

member of his/her decision, which, if contrary to the committee’s recommendation shall

be accompanied by a statement of the reasons.” If the faculty member is terminated or

suspended, he or she may then appeal “the president’s action” to the chancery court

pursuant to Tennessee Code Annotated section 49-8-304(a). The chancery court conducts

a de novo review of the record to determine whether clear and convincing evidence of

adequate cause is contained in the record. Tenn. Code Ann. § 49-8-304(a). Further, the

chancery court “may permit introduction of any and all evidence which [it] deems

necessary to enable [it] to dispose of the issues presented.” Frye v. Memphis State Univ.,

5

Adequate cause is not the sole basis for termination of a tenured faculty member available to

member institutions. Tenn. Code Ann. § 49-8-301(b)(3). It is, however, the sole basis for termination that

the University relies on in this appeal.

- 21 -

671 S.W.2d 467, 469 (Tenn. 1984).

As the chancery court “reviews the case without a jury, our scope of review is set

forth in Tenn. R. App. P. 13(d), which directs that we make a de novo review of the trial

court’s findings of fact, accompanied by a presumption of correctness, unless the

preponderance of the evidence is otherwise.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d

779, 783 (Tenn. 1999). Notably, “appellate courts should afford trial courts considerable

deference when reviewing issues that hinge on the witnesses’ credibility because the trial

courts are ‘uniquely positioned to observe the demeanor and conduct of witnesses.’” Kelly

v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000)). However, this level of deference is not given “to a trial court’s findings of

fact [that are] based on documentary evidence such as depositions, transcripts, or video

recordings.” Id. at 693. (citing Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 448

(Tenn. 2012); Orrick v. Bestway Trucking, Inc., 184 S.W.3d 211, 216 (Tenn. 2006);

Binette, 33 S.W.3d at 217)). Rather, “when factual findings are based on documentary

evidence, an appellate court may draw its own conclusions with regard to the weight and

credibility to be afforded that documentary evidence.” Id. (citing Excel Polymers, LLC v.

Broyles, 302 S.W.3d 268, 271 (Tenn. 2009); Bohanan v. City of Knoxville, 136 S.W.3d

621, 624 (Tenn. 2004)). We review any questions of law which may arise de novo without

a presumption of correctness. Wells, 9 S.W.3d at 783. Additionally, “[w]hether the

evidence is clear and convincing is a question of law that appellate courts review de novo

without a presumption of correctness.” Kelly, 445 S.W.3d at 693 (citing Reid ex rel.

Martiniano v. State, 396 S.W.3d 478, 515 (Tenn. 2013)).

B. Authority of the University’s President to Make an Adequate Cause

Determination

Though this issue is listed second in the University’s brief, we address it first on

appeal as Professor Nordbye claims that if President Rudd lacked the authority to override

the panel’s decision, his termination is void. This issue pertains to the chancery court’s

determination that “President Rudd’s removal of Nordbye was not based upon the findings

of fact by the President’s Panel majority which [were findings] in favor of Petitioner

Nordbye.” Essentially, the chancery court determined that the faculty handbook left the

president unable to make a decision contrary to the one listed by the panel majority in its

report. The chancery court seems to have interpreted the president’s role as essentially a

“tiebreaker” as it noted that it did not reach a conclusion as to what result would occur had

the panel resulted a “2 to 2 decision.” The University claims that this was a

misinterpretation of the terms of the handbook. The University asserts that the handbook

“unambiguously assigns that review authority to the University President and makes him

the final decision-maker with respect to the termination of tenured faculty [ ] and it

expressly contemplates the President making his own decision contrary to the hearing

committee’s recommendation[.]” Professor Nordbye claims that the chancery court

correctly interpreted the terms of the handbook, and President Rudd was not permitted to

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make a decision contrary to that of the panel. Additionally, Professor Nordbye claims that

President Rudd acted improperly by considering information not contained in the

administrative record when making his decision and by failing to adequately set out the

facts supporting his decision.

The disposal of this issue is predicated solely on the terms of the handbook. The

handbook provides in relevant part:

8. A hearing shall be conducted by the hearing committee (President’s Panel)

to determine whether adequate cause for termination of the faculty member

exists. The hearing shall be conducted according to the procedures below.

...

h. The findings of fact and the report [of the President’s Panel] will be

based solely on the hearing record.

i. The president and the faculty member will be provided a copy of the

written committee report. The committee’s written report shall specify

findings of fact and shall state whether the committee has determined that

adequate cause for termination exists and, if so, the specific grounds for

termination found. In addition, the committee may recommend action

less than dismissal. The report shall also specify any applicable policy

the committee considered.

9. After consideration of the committee’s report and the record, the president

may in his/her discretion consult with the faculty member prior to reaching

a final decision regarding termination. Following his/her review, the

president shall notify the faculty member of his/her decision, which, if

contrary to the committee’s recommendation, shall be accompanied by a

statement of the reasons.

The plain language of the handbook clearly provides authority for the president to make a

decision regarding termination that is different from that of the President’s Panel. This is

confirmed by the statement that the president is permitted to consult with the faculty

member “prior to reaching a final decision regarding termination.” If the president was not

permitted to make a decision contrary to that of the panel, there would be no need for

language referencing either consultation of the faculty member or stating the president is

to actually make such a decision. Further, the handbook provides explicitly for what is to

occur if the president’s decision is “contrary to the committee’s recommendation.” We

agree with the University that the chancery court misinterpreted the handbook. There is

no language in the handbook limiting the president’s authority to find that adequate cause

exists only when the panel has initially made that finding. Rather, the language is broad

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and describes the President’s act making a “final decision regarding termination.” It would

be incongruous to characterize the President’s authority as that to make a “final decision”

without also granting him or her the authority to override the decision of the panel as to

whether the facts contained in the record constitute a basis for termination. Further, this

reading of the handbook is supported by the testimony of Dr. Nenon, the University’s

provost, who stated that the ability to override the decision of the panel would be consistent

with the president’s “ultimate responsibility for the management of the University,” a

responsibility that “he did not delegate [ ] and cannot delegate [ ] to a faculty panel.”

Further, while not binding on the terms of the handbook itself, we find it notable

that the panel and counsel for both the University and Professor Nordbye appear to have

agreed during the initial administrative hearing that the president’s decision was the final

decision that could then be reviewed by the chancery court. Additionally, the report itself

is titled, “The President’s Panel Recommendation.” Both the majority and minority reports

state what action they “recommend[ed]” the president take. Therefore, pursuant to the

explicit terms of the faculty handbook, we find that President Rudd was not bound by the

determination of the President’s Panel and was permitted to issue his own “final decision

regarding termination” after reviewing the panel’s report and the administrative record.

However, as to Professor Nordbye’s concerns regarding President Rudd’s apparent

decision to consider matters outside of the administrative record, we agree that this was

improper. The faculty handbook states that the panel’s “findings of fact and [ ] report will

be based solely on the hearing record.” The handbook goes on to state that the president

is to consider “the committee’s report and the record,” at which point he or she may proceed

to consultation with the faculty member and then come to a final decision regarding

termination.

President Rudd’s written termination letter does not cite any events not contained

in the administrative record, but nor does it contain a recitation of the specific facts driving

his decision. Rather, the letter gives an outline of the charges levied against Professor

Nordbye and goes on to state that “there [was] evidence from faculty, staff, students,

colleagues and supervisors that show[ed] a pattern of unacceptable conduct, belligerence,

insubordination, and continued and deliberate failures to perform the duties and

responsibilities of [his] position.” However, Dr. Nenon, speaking on behalf of President

Rudd during his deposition, acknowledged that President Rudd was “aware of many more

things than the panel apparently became aware of.” When asked whether those incidents

had been taken into account, he responded that President Rudd had considered “the full

range of knowledge of all the things he had.” Therefore, it appears that incidents not set

forth in the administrative record weighed on President Rudd’s decision. However, it is

not necessary for this Court to determine to what extent, if any, those incidents affected

President Rudd’s decision. These proceedings were subject to de novo review by the

chancery court, which cures such procedural irregularities. See Wells, 9 S.W.3d at 787;

Phillips v. State Bd. of Regents of State Univ. & Cmty. Coll. Sys. of State of Tenn., 863

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S.W.2d 45, 50 (Tenn. 1993); Frye, 671 S.W.2d at 469. President Rudd’s decision was not

given deference, and the chancery court’s decision was predicated solely on the record

presented. Further, other evidence brought forth during the chancery proceedings was

excluded. The chancery court specifically excluded testimony from Dr. Lou that pertained

to matters which occurred after the issuance of the termination letter and refused to consider

such events. Therefore, any procedural error that may have occurred during President

Rudd’s review was cured by de novo review in the chancery court.

C. Sufficiency of the Evidence

Having concluded that President Rudd had authority to override the decision of the

President’s Panel and that de novo review by the chancery court cured any procedural

irregularities, we now consider whether the record contains clear and convincing evidence

of adequate cause to terminate Professor Nordbye. Notably, the chancery court ruled on

three grounds for adequate cause: (1) willful failure to perform the duties and

responsibilities for which the faculty member was employed . . . , (2) capricious disregard

of accepted standards of professional conduct, and (3) failure to maintain the level of

professional excellence and ability demonstrated by other members of the faculty in the

department. See Tenn. Code Ann. § 49-8-302. However, on appeal, the University has

challenged only the chancery court’s determination that there was not clear and convincing

evidence establishing Professor Nordbye acted with a capricious disregard of accepted

standards of professional conduct. Therefore, we will review the record only to determine

whether clear and convincing evidence of this ground for termination existed.

The University does not appear to dispute any of the trial court’s factual findings.

Rather, it contends that the trial court erred by holding those factual findings did not amount

to clear and convincing evidence of a capricious disregard of accepted standards of

professional conduct. The University argues that the chancery court erred by weighing

each incident “in isolation” when it was required to “consider the record ‘as a whole’ in

accordance with Tenn. Code Ann. § 49-8-303(a)(4).” The University contends that when

weighing these incidents together, they demonstrate that adequate cause for Professor

Nordbye’s termination existed. See McClellan v. Bd. of Regents of State Univ., 921 S.W.2d

684, 692 (Tenn. 1996) (stating in the context of an adequate cause case predicated on sexual

harassment that “conduct may be actionable because of frequency or gravity”). We agree.

The phrase “capricious disregard of accepted standards of professional conduct” is

not defined in the statute or the handbook. However, we do have case law interpreting this

ground for termination that is instructive. In Phillips, a member of the Board of Regents

system sought to terminate an employee for capricious disregard of accepted standards of

professional conduct. Phillips, 863 S.W.2d at 48. Our Supreme Court summarily held

that the proof was “overwhelming” that the professor had engaged in behavior constituting

this ground for termination. Id. The termination notice issued to the employee alleged that

the following conduct constituted a capricious disregard for the standards of professional

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conduct: (1) a lack of compassion and insensitivity to student needs, (2) poor judgment and

inflexibility in administering classroom policies, (3) a lack of professional behavior

towards peers, administrators, and staff, (4) an inability to recognize personal weaknesses

affecting communication and decisions, (5) insubordination to supervisors, (6) continuous

increasing patterns of controversy with other professional areas at the college, and (7) an

unwillingness to modify behavior after being notified of problem areas and consequences.

Id. at 48. In Wells, our Supreme Court clarified that “[t]he Phillips case clearly illustrates

that the behavior of tenured faculty toward staff, colleagues and superiors, as well as

toward students, can constitute ‘capricious disregard’ within the meaning of Tenn. Code

Ann. § 49-8-302(5) (1996 Repl.).” Wells, 9 S.W.3d at 786.6 Many of Professor Nordbye’s

behaviors that are identified in the charging documents fall into these same categories.

Notably, the Wells court ultimately determined that the evidence contained in the

record presented did not warrant reversal of the chancery court’s decision that adequate

cause had not been proven by clear and convincing evidence. Id. at 788. The Court did

so due to certain factual findings made by the chancery court after hearing live testimony

elicited during the proceedings before it. Id. Because those proceedings took place in

chancery court, the chancellor’s assessment of the testimony was entitled to a presumption

of correctness. Id. at 783-84. Conversely, here, the vast majority of the evidence at issue

is documentary evidence, and therefore, we are not bound by the same constraint. Id.

Professor Nordbye’s interactions with his students and peers certainly support a

charge of a capricious disregard for the accepted standards of professional conduct.

Evidence concerning Professor Nordbye’s relationships with two independent study

students demonstrates a lack of professional behavior that resulted in Professor Lou taking

over the study of one student, and the other withdrawing from the course. While the

chancery court appears to have found that the email to the first student was not the threat

Professor Lou took it to be, his inability to work with the student and decision to blame the

student for issues that arose support this ground for termination. Professor Lou specifically

stated that Professor Nordbye’s “blaming” of the student constituted a “sort of

inappropriateness” for an independent study instructor. He also testified that the student

was “cooperative” when he took over the course. As to the second independent study

student, Professor Lou noted that other professors within the department were deeply

concerned about how the student had been treated and even recommended that the student

file a grievance. Likewise, Professor Nordbye sent disrespectful emails to members of

faculty, even going as far as to tell one member of the art department, “[p]lease retire.”

Similarly, after being asked to author a description of the foundations program for the

University’s website, Professor Nordbye circulated a “fake joke copy” to Professor Lou

full of criticisms of the art department as well as self-aggrandizing statements.

Simultaneously, he failed to follow instructions by “by-pass[ing]” Professor Lou and

6

We do not believe the Supreme Court intended for this list to be comprehensive, but the types of

conduct listed largely cover the types of conduct leading to Professor Nordbye’s termination.

- 26 -

sending the description directly to the web administrator. Additionally, Professor Nordbye

was disrespectful to a colleague during a spontaneous fire drill and refused to adhere to her

requests to move away from the building despite the presence of students. The chancery

court seems to have found this incident did not constitute adequate cause due to a lack of

proof that Professor Nordbye had been previously instructed on the proper area to move to

in the case of a fire. However, this completely disregards its own finding that he “was rude

and defiant” to the faculty member and “instructed students to disregard the faculty

member’s order.” His knowledge of the appropriate location is frankly irrelevant.

Regardless of whether he knew the proper location at which to congregate, he was openly

“rude and defiant” toward his colleague and undermined her in front of students. Likewise,

the comments in Professor Nordbye’s SETE evaluations and those elicited by Professor

Lou during his meetings are riddled with criticisms regarding his interactions with students.

Many commented on his overly harsh and arbitrary criticisms. One SETE comment noted

that “[g]irls cried” and Professor Nordbye “belittle[ed] . . . students whenever they

disagree[d] with [him].” Another noted that it often took several class periods to complete

critiques and that Professor Nordbye could “be insensitive and quite rude at times.” The

student also noted that he or she felt compelled to make “artwork for the professor instead

of exploring what [he or she] wanted to make” because “he was more harsh on your grade”

if the artwork was not within his interest. Another student stated that “critiques were

terrible” and Professor Nordbye “didn’t even get to everyone.” The student went on to say

that students “made projects only to please his weird idea of art” because “[t]hey were

scared of being put down in front of their classmates.” The student also noted that “[h]e

would say really rude [and] hurtful things[.]” The trial court seems to have discounted

these comments because they were not direct testimony, noting on multiple occasions that

“[t]he University did not call in one single student to testify.” However, pursuant to the

handbook, the committee was not constrained by the normal rules of evidence.

Additionally, no evidence contained in the record demonstrates that the SETE comments

were unreliable and as this is documentary evidence, we are permitted to assign it more

weight than the chancery court despite its concerns. See Kelly, 445 S.W.3d at 692. Further,

while the chancery court notes that some positive comments were contained in the record,

the record contains more negative student feedback than positive.

The record also contained evidence of several additional inappropriate and

unprofessional interactions between Professor Nordbye and students. Professor Nordbye

was involved in not one, but two such incidents in the on-campus Subway restaurant. The

first involved Professor Nordbye shouting at students in line to “stop eating Subway” and

bring food from home. Professor Nordbye was then confronted by an employee but

claimed that he could do what he wanted. While Professor Nordbye testified extensively

about his attempt to reform the campus food systems, he never denied the confrontation or

attempted to explain the incident. Later, Professor Nordbye engaged in a shouting match

with a student in the restaurant that required Professor Lou to intervene. Additionally, one

student and Professor Nordbye himself reported his use of the “N” word during a class

discussion. Professor Lou explained during his testimony that such language can certainly

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be used to accomplish goals in an educational setting, but that using it for “shock” value

and without establishing the proper educational context left its use wholly inappropriate.

Professor Nordbye did not address this incident in his testimony. These verbal

confrontations with students and on-campus workers clearly support the charge of a

capricious disregard for the standards of professional conduct.

It is also notable that Professor Lou and Dr. Schmidt consistently informed

Professor Nordbye that these types of interactions were unacceptable, but Professor

Nordbye did not change his behavior. In Phillips, our Supreme Court considered the

employee’s unwillingness to modify behavior after being notified of certain issues as a type

of behavior constituting a capricious disregard for the standards of professional conduct.

Phillips, 863 S.W.2d at 48. Here, Professor Nordbye acknowledged that his behavior was

out of line. Regardless, he often responded to Professor Lou’s attempts at correction with

contempt and sarcasm. Meanwhile, the University took steps to help Professor Nordbye

overcome his issues through the implementation of a performance improvement plan and

by assigning him a faculty mentor, which itself was an unprecedented attempt at correction.

While Professor Nordbye did comply with some portions of the plan involving the use of

rubrics and syllabi, he failed to internalize the lessons pertaining to etiquette with peers and

students. Professor Nordbye did agree to reduce his committee work and “rein in [his]

impulsivity in the classroom” in his response to his May 2016 faculty evaluation, but he

later failed to do so. While Professor Lou did assign him to certain committees, he

explained that these were necessary for Professor Nordbye as one was a search committee

for a professor he would supervise and the other involved his expertise in modern art.

Meanwhile, Professor Nordbye attempted to “decline” an order to stop serving on certain

committees. He later attempted to form a completely new committee. Additionally,

Professor Nordbye accepted commissions to paint murals despite having already been

informed that “he needed to not take on giant tasks” in order to focus on “his . . . primary

mission, which [was] to teach courses effectively.” He did not adequately engage in Dr.

Schmidt’s attempts to help him, failing to send him emails for review, and failing to

complete exercises prior to meetings. Professor Schmidt also noted that Professor Nordbye

failed to manage all of his obligations and took on additional projects such as murals

despite it leaving him without adequate time to manage his coordinator responsibilities.

Professor Nordbye spent much of his time with Dr. Schmidt expressing anger and

resentment towards Professor Lou. This led Dr. Schmidt to warn Professor Lou and advise

him not to meet with Professor Nordbye alone. Additionally, Dr. Schmidt reprimanded

Professor Nordbye for constantly arguing with Professor Lou, but he continued to do so.

This eventually led Dr. Schmidt to determine that he could not help Professor Nordbye and

to resign from his position as faculty mentor. Professor Nordbye’s consistent failure and

refusal to accept correction supports the charge that he exhibited a capricious disregard for

the standards of professional conduct as it clearly demonstrates a lack of proper respect for

the standards espoused by his direct superior and faculty mentor.

Moreover, the record is rife with evidence of Professor Nordbye simply failing to

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perform his duties in accordance with the proper regard for the standards of professional

conduct. Professor Nordbye missed multiple faculty and department meetings. Professor

Nordbye even missed a meeting scheduled to discuss his faculty evaluation in the wake of

the incident involving the second arrest warrant because he overslept. When the other

meeting participants called him, he responded angrily by yelling and eventually ended the

call. Professor Nordbye also failed to timely hire staff for a foundations level course. This

created “turmoil” within the art department and once resulted in a section of students

attending a class in which no professor was assigned. Professor Lou was then required to

hire an instructor for that course. Professor Nordbye even failed to recruit models for

students in his drawing class, and when confronted, blamed the graduate student to whom

he had assigned the task. In our view, failure to perform these basic tasks in a professional

manner also supports the charge of capricious disregard for the standards of professional

conduct. This conduct was unexpected of a foundations coordinator, and Professor

Nordbye’s failure to address these issues in a timely manner demonstrates a lack of respect

and consideration for his duties.

Several other incidents also demonstrate a capricious disregard for accepted

standards of professional conduct. While it appears that the use of deceased animals as

models for art students is common practice in the art department, it does not excuse

Professor Nordbye’s behavior. Professor Nordbye did not follow the proper protocol

employed to bring such items into a classroom. Regardless, Professor Nordbye’s response

to being informed that this was an issue was more concerning. He refused to listen when

University officials attempted to explain that this type of behavior violated school policy.

Professor Lou even testified that it was not the act of bringing the remains into the

classroom, but rather the failure to follow the proper protocol and the “great effort . . . to

get him to agree to comply to our policies” that caused issues. The trial court’s

consideration of this issue ignored this point and focused only on the general practice of

using human and animal remains as models. It characterized Professor Nordbye’s response

to this issue as “agree[ing] to comply with protocols.” The order cites only Professor Lou’s

testimony as support for its interpretation of Professor Nordbye’s response. However, the

record reflects that Professor Lou stated “it took a great deal of effort” to convince

Professor Nordbye to comply with the policy, as he argued that “because he had put [the

remains] in a condom” it did not pose a safety issue. Professor Lou further described

Professor Nordbye’s response as a “flippant and belligerent back and forth.” This response

certainly supports the University’s charge of adequate cause, as it demonstrates the failure

of Professor Nordbye to treat his direct superior and the policies of the University with

proper respect and also displays his impulsive behavior.

Professor Nordbye’s response to the issuance of the second warrant for his arrest

also supports the charge of capricious disregard. Notably, we do not assign any weight to

his behavior related to the first incident in which he was arrested during class. He was

unaware that a warrant existed, and there is no evidence of what led to the arrest other than

his statements that he was charged for domestic assault, and the charge was later dismissed.

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The charges did not involve professional conduct, and he worked with Professor Lou to

resolve the issues. However, his actions following the issuance of the second arrest warrant

certainly support the charge of capricious disregard. Professor Nordbye not only taught

his class while aware of the warrant’s existence, but he also told the class the warrant

existed. Professor Nordbye stated that he did so to manage the emotional environment of

the class but did not explain how informing the class of the warrant’s existence led them

to be calmer or more emotionally regulated. Further, he argued with Professor Lou about

the assignment of substitute professors, stating he would attend and “co-teach” rather than

let a substitute teach. This led to the classes being cancelled altogether. Afterward,

Professor Nordbye had yet another unprofessional interaction with a student distributing

stickers. Rather than going through the proper channels to file a grievance, Professor

Nordbye used his university email address to make a legal threat against the student.

Professor Nordbye was reprimanded for this incident and admitted that he understood why

it was problematic as “there could be a voice of authority” associated with a university

email address. Additionally, Professor Nordbye removed a sink from his classroom wall

without proper authorization. Despite his attempts to demonstrate that he was qualified to

do so and claims that other professors had made physical alterations to the art building,

Professor Nordbye did not demonstrate that he either obtained permission beforehand or

was not required to do so. Professor Lou and Dr. Weddle-West both testified that Professor

Nordbye had been instructed to abstain from doing such things prior to this incident. In

fact, Professor Nordbye stated in an email he “knew that [he] was crossing a boundary with

the sink thing” and understood why it resulted in Professor Lou becoming concerned.

This evidence clearly and convincingly demonstrates a capricious disregard for the

standards of professional conduct applicable to a tenured professor within the board of

regents system. Notably, the chancery court did not find that these incidents did not occur,

but rather analyzed the incidents one-by-one and in isolation or in a few cases found that

the evidence was not convincing. Our analysis differs in that we considered the record “as

a whole” in accordance with Tennessee Code Annotated section 49-8-303(4) and, as

explained above, gave greater weight to certain evidence such as the comments contained

in student SETE reports. When considered in isolation, many of these incidents may not

rise to the level of capricious disregard necessary to constitute adequate cause for

termination, but certainly, when considering their frequency, they amount to a capricious

disregard for the standards of professional conduct. See McClellan, 921 S.W.2d at 692.

Additionally, the chancery court appears to have considered that Professor Nordbye was

placed on a three-year performance improvement plan but was terminated prior to its

completion when assessing this ground. However, the completion of this plan was not

required for termination pursuant to this ground for adequate cause pursuant to the

handbook and was therefore irrelevant to our analysis of this ground.7 Notably, several

7

The grounds of incompetence or dishonesty in teaching or research and failure to maintain the

level of professional excellence and ability demonstrated by other members of the faculty in the department

or division of the university do require the “fulfillment of the Post Tenure Evaluation and Faculty

- 30 -

incidents which clearly support the charge of capricious disregard were not considered in

the trial court’s analysis. Neither incident that took place in the on-campus Subway

restaurant was mentioned in its analysis. As stated above, both were interactions that

demonstrated a failure to treat others with proper respect and a disregard of the standards

of professional conduct. Similarly, the chancery court did not reference the email asking

another faculty member to “[p]lease retire” or his sarcastic responses when reprimanded

by Professor Lou. Likewise, the chancery court made no reference to Professor Nordbye’s

use of the “N” word in class without the proper educational context. Each of these incidents

certainly supported this ground for termination.

Considering the record as a whole, we hold that there is clear and convincing

evidence illustrating Professor Nordbye engaged in a capricious disregard for the standards

of professional conduct applicable to a tenured college professor, and there was adequate

cause for his termination.8 For years, Professor Nordbye disrespected students and faculty

and took actions flouting the standards of professional conduct. Attempts were made to

correct his behavior, but he failed to improve and often responded sarcastically or

flippantly. For these reasons, we reverse the decision of the chancery court.

IV. CONCLUSION

For the foregoing reasons, we reverse the decision of the chancery court and remand

for entry of an order consistent with this opinion. Costs of this appeal are taxed to the

appellee, Cedar Nordbye, for which execution may issue if necessary.

s/ Carma Dennis McGee

CARMA DENNIS MCGEE, JUDGE

Development” pursuant to the handbook.

8

Notably, we did not consider Professor Nordbye’s actions of silk-screening statements onto walls

and doors and hanging of silk-screened images in department buildings. To do so might require this Court

to assess whether those acts fell within areas of protected speech or academic freedom as the trial court

found the firearm images were “art” and part of Professor Nordbye’s “long history of anti-violence art.”

Given the overwhelming nature of the remainder of the evidence in the record, it is not necessary for us to

consider his arguments in this regard.

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