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Professor Wins Chance to Clear Name

January 9, 2009

A federal appeals court on Thursday ordered two Ohio University administrators to stand trial to defend their 2006 decision to strip the "graduate faculty" status from an engineering professor for his alleged role in a major plagiarism controversy. The U.S. Court of Appeals for the Sixth Circuit, overturning a lower court's decision, ruled that the university's provost and engineering dean should have granted Jay Gunasekera a public hearing before punishing him, and that the failure to give him one gave him legitimate grounds challenge their decision to strip him of graduate faculty status.

The Gunasekera case is just one outgrowth of a larger scandal that has caused immeasurable headaches for the university, including contributing to destabilizing its leadership. What began in 2005 as a former engineering graduate student’s effort to show dishonesty among his colleagues ballooned into a university-wide investigation.

On one particularly fateful day, which is at the core of the present lawsuit -- May 31, 2006 -- the university's provost, Kathy Krendl, and the engineering dean, Dennis Irwin, announced the results of a review by an administrator and a retired professor that found “rampant and flagrant plagiarism” by graduate students in the mechanical engineering department. It also, in harsh language, singled out three faculty members for ethical breaches in failing to monitor the students sufficiently, including Gunasekera, then chairman of the mechanical engineering department.

“We are appalled that three members of the faculty in mechanical engineering have so blatantly chosen to ignore their responsibilities by contributing to an atmosphere of negligence toward issues of academic misconduct in their own department," the authors of the report wrote. In July 2006, the university announced that it would suspend Gunasekera's status as "graduate faculty" -- which allows professors to oversee master's and doctoral students -- for three years and withhold any merit pay for a year. He sued in August, accusing Krendl and Irwin of violating his due process rights by suspending him without "notice and a meaningful opportunity to be heard" and by publicizing the plagiarism accusations against him without a "meaningful opportunity to clear his name."

A federal district court in September 2007 granted the Ohio administrators' request to dismiss the lawsuit, ruling that Gunasekera could not justify a due process claim because he did not have a "property interest" in the graduate faculty status and that the university had offered him due process for any "liberty" interest (such as defamation of character) by offering him a chance to clear his name at a private meeting -- an opportunity Gunasekera had passed up.

The Sixth Circuit court disagreed with the lower court on just about every point. The three-judge panel determined that Gunasekera had presented sufficient evidence to argue that graduate faculty status -- which Ohio University had never before revoked or suspended -- did indeed represent a property interest, alleging that he had lost a summer research stipend and a diminished teaching load. (The professor's lawyer, John Marshall, said in an interview Thursday that he would "build a strong record at trial showing that graduate faculty status is a "concrete benefit that's of great value" to Gunasekera, because "with no graduate faculty status, grad students don't want to work in your labs because you can't be their adviser.")

And the university's admission that the professor had not been offered a hearing before or after being stripped of his graduate faculty status, the Sixth Circuit said, was sufficient reason for it to reverse the lower court's decision to dismiss Gunasekera's property interest claim.

The question of whether Gunasekera received due process before being deprived of a protected "liberty" interest -- in this case, his reputation, allegedly damaged by the plagiarism accusations -- centers, the appeals panel said, on whether he had sufficient chance to clear his name.

The university officials' offer to give him a chance to clear his name in a private, internal hearing was insufficient, the court said, because "where, as here, the employer has inflicted a public stigma on an employee, the only way that an employee can clear his name of the public stigma is through publicity.... [I]f Gunasekera’s name was cleared at an unpublicized hearing, members of the public who had seen only the stories accusing him would not know that this stigma was undeserved."

The panel ordered the university -- after the lower court reviews the exact circumstances of the case -- "to offer Gunasekera a name-clearing hearing that is adequately publicized to address the stigma the university inflicted on him."

The appeals court also ruled that Krendl and Irwin did not qualify for immunity on Gunasekera's claims that he was unconstitutionally deprived of his graduate faculty status; the two administrators did win a small victory in the court's granting of immunity on the professor's claims about defamation of his character.

Marshall, the lawyer for Gunasekera, said the professor was eager to make his case at trial in the lower court. While Gunasekera is still employed at Ohio, "his life has changed dramatically," because he has lost things that are "integral to who he is and what he does."

A university spokeswoman said Ohio officials could not comment on the decision because they had not had a chance to fully review it.

Krendl has been named the new president of Otterbein College.

 

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