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Free Speech or Hostility?

March 12, 2014

Is calling a colleague a racist in public grounds for termination? A tenured professor of music at Cameron University says he’s on the verge of being fired for just that. A lawsuit he’s filed in a federal court says Cameron is violating his First Amendment rights in punishing him for insisting that the university apply its diversity policies in faculty searches. The university says the professor went beyond protected speech in creating a racially hostile work environment.

While a university investigation includes some evidence to support its claim, details of Alfred Duckett’s appeals process have raised concerns among faculty and free speech advocates.

By all accounts, what little interaction Duckett had with his fellow music faculty members leading up to the events of April 17, 2012, was poor. Duckett was brought to the university five years earlier as a tenured department chair, but was removed from that position within months, after a faculty vote of no confidence. His colleagues maintain that was because he was incompetent, and Duckett, who had previously served as a chair at Saint Augustine’s University, says it’s because the department was overbearingly close-knit and the university offered him little to nothing in the way of orientation or resources.

Duckett says that the department included three married couples who were presumed to vote in pairs. That, combined with the fact that he was the only black professor, was professionally and personally alienating. He says that he was consistently denied the opportunity to teach summer courses, in contrast to a white colleague who also was a relative newcomer. And institutional racism was evidence elsewhere on the Lawton, Okla., campus, he said, noting that he’d been stopped four times on campus for questioning by university police (a claim that could not be independently confirmed).

His colleagues, on the other hand, deny race was a factor in their dealings with Duckett, whom they say displayed erratic behavior, such as leaving department meetings mid-agenda. They also allege he was singularly focused on issues of race.

Discord Over a Search

Things came to a head in 2012, when the department started looking for a new voice professor. Duckett urged fellow members of the search committee, chaired by Hyunsoon Whang, a music professor, to consider applicants’ race. Duckett says he wanted the university to apply its equal opportunity policies and make the predominantly white faculty more diverse. The university’s Affirmative Action Plan, outlined in the Faculty Handbook, says Cameron aims to take “positive actions in the recruitment, placement, development, and advancement of women and racial minority members in University employment.”

According to university data from November 2013, 141 of 189 full-time faculty members are white; 25 are Asian; 11 are Hispanic; 9 are black and 3 are Native American.

Duckett pointed in particular to three applicants whom he believed to be minorities, all of whom made an initial list forwarded to Von Underwood, dean of the School of Liberal Arts. (Note: An earlier version of this sentence incorrectly stated Underwood's dual faculty affiliation.) Duckett was particularly interested in a black woman candidate, as there had been no African-American woman professors in the School of Liberal Arts since 1999, according to his lawsuit. (A university spokesman contested that claim and said the university as recently as November employed four African-American or black full-time, female faculty members.)

When Duckett learned that that candidate had not made a short list of interviewees to be invited to campus, he filed a confidential complaint with Cameron’s Equal Employment Opportunity Office alleging that the department had failed to consider a qualified applicant on the basis of race. When Whang was asked to attend a meeting at the EEO office that day in April, she guessed what it was about. According to faculty interviews detailed in a university report obtained by Inside Higher Ed, Whang came to Duckett’s office to ask him if he had filed a report against her.

Whang told Duckett he was “wasting” the department’s time in filing the complaint, and that she was not a racist. She then left his office. Whang says Duckett followed her into the hall and said that she was a racist. Duckett says he said her comments were racist.

Upset by the allegation, Whang emailed a complaint to Underwood, the dean, and copied Cameron’s EEO officer, Thomas Russell; Cindy Ross, the university’s then-president; and several other music professors.  

She began the complaint with a discussion of various postings about racism on Duckett’s office door. Among other things, those notes say that racism is wrong; that racism continues in this day and age; that racism causes anxiety, depression and other ill effects; and that racism should be eliminated, according to the lawsuit.

“I have always thought these postings were inappropriate, unprofessional and extremely offensive,” Whang wrote. “Those postings have nothing to do with ‘academic freedom’ [quotes hers]. I am especially embarrassed for students (current AND prospective) [emphasis hers], their parents and the visitors from the community and elsewhere […] I have always tried to keep it light by giving them some politically correct answer as not to make a big deal out of it.”

'Shocked and Devastated'

Whang recounts the events of earlier that day and says she was “simply shocked and devastated” to have been called a racist. She says Duckett “has accused me wrongly and has created a hostile work environment” and asks Underwood for his “assistance in solving this problem.”

Within days, Russell, the EEO officer, initiated an investigation into Whang’s claim. The report says he interviewed those employees copied on Whang’s email to “obtain input from each of them to help understand the background of the situation.” The report involved no additional faculty members.

Russell began with a staff member who had witnessed the interaction between Duckett and Whang. The staff member said she had prepared a written statement for Russell’s benefit. She said she’d been alerted to the fact that Whang and Duckett were “exchanging words” by a third faculty member in the hallway, and that she heard Duckett call Whang a racist.

Asked if Whang was a racist, the staff member said, “No! She likes to take everyone under her wing.” Asked if Duckett is a racist, the staff member said yes, and that “everything he says is racially motivated. In department meetings, when he attends, Dr. Duckett is constantly arguing with [the chair] about every issue. He talks louder to make his point. Working around him is like working in mine field.”

Interviews with various faculty yielded similar responses. Fellow music professors said that Whang is not a racist, but that Duckett is. Some faculty members said that students also had reported that Duckett was racist and “unbalanced.” (The only evidence for this claim was his repeated emphasis on racial issues and frustration with racial environment.)

One professor says “we are in a critical condition where Duckett may be so angry that he might do something violent.” The report does not elaborate on that claim. Whang said she feared Duckett might hit her. However, no one cited any incidents of Duckett doing anything physical.

Another professor said Whang said she was taking her concerns about Duckett “to the top” shortly after the incident.

Duckett said those claims all came as a shock. No one in the department “has ever discussed racism with me,” he said via email. “I had no way of knowing how bitter and deep feelings ran until receiving the documentation of comments made. No one has ever asked me why there were anti-racism posters on my door and no opportunity has ever been provided for me to express my concerns in a collegial environment.”

A Survey of Students

The university investigation also includes survey responses from 11 advanced music students about department faculty. Several hadn’t taken a class with Duckett, who specializes in conducting.  All respondents answered “yes” or “I don’t know” when asked if Duckett is a racist, and “no” for most or all other professors. Several students reported preferential treatment of African-American students by Duckett and a lack of preparedness for class. One student said that Duckett called her “Legs,” making her uncomfortable in class. Duckett had been reprimanded for the "inappropriate" comment in a previous, separate EEO report. He has consistently denied making the comment and believes fellow faculty members may have coached students to report negative comments.

The larger EEO investigation ultimately found that Duckett had “created a hostile work environment in the Department of Music through his continued insistence that race must be in the forefront of all discussions. While Dr. Duckett states that he wants an open discussion on race he refused to listen and try to understand the views of others.”

The music department learning environment had been “compromised, as too much time is being spent dealing with issues other than teaching and learning,” according to the report.

Russell wrote that the evidence against Duckett was “sufficiently clear and serious so as to warrant the immediate commencement of formal proceedings” to administer severe sanctions, according to Cameron’s Faculty Handbook. The handbook names professional incompetence or dishonesty; repeated failure to fulfill professional duties; certain personal behaviors, such as “deliberate and grave violations of the rights and freedoms of fellow faculty members, administrators and students”; and moral turpitude as possible reasons, among others, for such sanctions including dismissal against tenured faculty members.

In the same report, Russell dismissed a countercharge of retaliation that Duckett filed against Whang following their argument. He determined that Whang could not retaliate against Duckett because they were peers, or “two faculty members having a disagreement.”

Barred From Campus

Russell submitted his report to the President Ross in May 2012. In August of that year, she notified Duckett that he was relieved of all teaching, service and advising obligations and barred from campus until further notice.

He was allowed on campus for an EEO report-related appeals pre-hearing in December 2012. After reviewing the report and hearing comments from Duckett and Whang, a faculty panel originally determined that there “did not exist adequate grounds” for a full appellate hearing. Duckett eventually was granted a full, Faculty Senate-based appeals hearing more than a year later, in January of this year. The faculty panel sided with the administration, which had previously recommended his dismissal.

According to a transcript of that hearing, Keith Vitense, a professor of physical sciences and the appeals committee chair, told Duckett that “the burden of proof is on Dr. Duckett to establish by a preponderance of the evidence that there was not adequate cause for his dismissal from the faculty of the university.” Duckett said he was not able to introduce additional evidence, such as his Spring 2012 student evaluations, which rate him at or above the institutional average in most areas. He wasn’t able to call additional witnesses (Duckett says all those students who offered negative comments in the EEO report were advisees of faculty members copied on Whang’s email), or “confront his accusers.”

The appeals panel said it had to accept the EEO report “as final” because it already had been through a faculty appeals process. Underwood said at the second hearing that he wrestled with Duckett’s case, but that he was unconvinced anything less than dismissal could remedy the professor’s “pattern of behavior.”

Underwood said that “establishing a hostile and discriminatory work environment” was “exactly” what the Faculty Handbook severe sanctions criterion on “grave violations of the rights and freedoms” of fellow faculty members, administrators and students was all about.

Duckett said at the hearing that he had talked about race with many faculty members, and that it made them “uncomfortable. They did not want to talk about it.”

“But it is within my right [sic] as a citizen of this country to talk about an issue that is as important as racial discrimination,” he said. “It is within my rights, as a tenured professor, based on academic freedom.”

Put another way, Duckett believes there's a big difference between talking about racism, even pointedly and frequently, and being racist or hostile.

Duckett’s been in limbo since the hearing, awaiting a final decision from the Oklahoma Board of Regents – the only body that can enforce severe sanctions.

He expects to be fired but thinks the second appeals panel made its decision based on a report that’s never been “vetted.” Questions remain, he said, as to why the staff member had prepared a written statement in advance of Russell’s EEO interview; why the report included an interview with Whang’s husband, also a member of the music department, who presumably would have a conflict of interest; why the chair, James Lambert, was not interviewed for the report; and what the exact charges against him were. (Note: An earlier version of this sentence referred to Lambert, the department chair, by an incorrect first name.)

In other words, how did Whang’s email about their argument lead to dismissal proceedings?

Duckett’s lawsuit says Cameron is forcing him “through a rigged process with outcome determined in front of biased decision makers.”

Several members of the music department, including Whang and Lambert, did not respond to requests for comment. Russell and Vitense declined to comment. Underwood, the dean, referred the question to the university news office. A spokesman said the university does not comment on personnel cases as a matter of policy.

Josh Lehman, spokesman, added: "Cameron University takes seriously any allegation of racial discrimination and considers its racial and ethnic diversity a significant point of pride.  In instances where a finding of discriminatory behavior has been made, appropriate action is taken to remedy the situation and protect the learning environment for all faculty, staff and students.  In taking any action, the university maintains a strong commitment to academic freedom and takes great care to afford due process protections for all involved parties."

Mike Dunn, chair of Cameron’s Faculty Senate and professor of biological sciences, said he was largely unaware of the details of Duckett’s case, by design. He understood that the case had “nothing to do with academic freedom” and was rather a “faculty-faculty issue,” so wanted to know as little as possible so that he could pick appellate committee members he “thought could be fair,” he said.

Burden of Proof

The American Association of University Professors agrees that there were irregularities in Duckett’s case and has sent a letter to Cameron on his behalf.

“We are deeply troubled by the procedures that were followed prior to dismissing Professor Duckett from his tenured faculty position,” the letter says. “AAUP-supported standards require that the administration bear the burden of demonstrating adequacy of cause for the action in a hearing of record before and elected body of faculty peers.”

More specifically, AAUP policy says that burden will be satisfied “only by clear and convincing evidence in the record considered as a whole.” That a tenured faculty member should be considered “guilty and then have to prove innocence is inimical to academic due process,” the letter says.

Anita Levy, associate secretary at AAUP, said in an interview that the second appeals panel was “very curiously conducted,” and that Cameron had denied on several occasions AAUP’s request for a neutral observer to be present. AAUP has since pledged $2,000 towards Duckett's legal fees.

Beyond engaging AAUP, Duckett’s suing Ross, the now-retired president; John McArthur, the current president; and Russell in a federal court for First Amendment violations (the court dismissed additional charges of breach of contract and race discrimination and the Board of Regents as a defendant).

The suit says Duckett “engaged in protected speech on the issue of racial discrimination in the workplace, which can be fairly characterized as constituting speech on a matter of public concern,” and that the speech was not “unduly disruptive” – a key element in First Amendment cases.

Levy said Duckett’s speech generally should be protected by academic freedom. “A faculty should have the right to speak out issues related to a faculty search,” she said.  

Robert O’Neill, a free speech expert and former University of Virginia president and law professor, said in an email that calling a fellow professor a racist was certainly “uncollegial.” But a single offensive epithet would be “insufficient to trigger a major sanction even if targeted to a colleague and not germane to the subject matter.”

He continued: “If the concern, by contrast, was inadequate performance amounting (or falling to the level of) ‘demonstrated lack of fitness’ [which could be grounds for termination, according to AAUP] in the classroom, for example, the remedy would be an institutionally driven demand for termination or dismissal consistent with rigorous due process and with the institution bearing the burden of proof throughout.”

Duckett is waiting for his day in court. He’s asking for damages in excess of $75,000. He doesn’t necessarily want to stop teaching at Cameron, because he likes his students and the nature of the work, he said. But he wants to bring attention to racism he sees there and across the academy.

“I know when to walk away and when to run, and I’m not doing that this time.”

 

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