Degrees of Gravity

July 8, 2011

The way that events unfolded led inevitably to outrage.

On July 19, 2009, Edward T. Larkin, a professor of German at the University of New Hampshire, drove his motorcycle down Route 101 to the Market Basket in Milford. He pulled into the parking lot behind a car in which a 17-year-old girl was driving her mother. Larkin parked and dismounted.

As the woman and her daughter got out of their car, they looked over at Larkin, who was standing nearby in a black and yellow jacket. His zipper was down and his penis was hanging out.

After his arrest, Larkin was placed on paid administrative leave. The following spring, he pleaded guilty to a class B misdemeanor, paid a $1,000 fine and was ordered by the court to undergo a psychological evaluation. Larkin was not required to register as a sex offender.

After the guilty plea, the university’s president, Mark Huddleston, sought to fire Larkin. While Huddleston expressed concern that even a minimal risk of a repeat offense was too much to bear, his administration also argued that the professor’s conduct -- and the widespread media coverage it generated -- had damaged the university’s reputation, which, in turn, would hurt UNH’s ability to attract students and raise money. “Reputation is all we have,” Huddleston said during a hearing on the matter.

But the professor appealed, citing language in the faculty union's contract that has been in place since 1984 but was never tested until this case. The contract set a high bar for dismissing faculty for just cause, describing the reasons as “professional incompetence, deliberate neglect of duty or moral delinquency of a grave order.” For Larkin, a tenured professor with more than 25 years of service to the university with nary a question raised previously about his conduct in the classroom or as a scholar, the entire situation (including his own motives during the incident) proved baffling.

The matter went to arbitration in January, and the question of whether Larkin would be able to keep his job hinged on this question: what distinguishes general moral delinquency from moral delinquency of a grave order?

In themselves, moral turpitude clauses are common in faculty contracts. The term is defined in a set of interpretive comments by the American Association of University Professors from 1970. It is described as conduct that is so “utterly blameworthy” that it would “evoke condemnation by the academic community generally,” though, the AAUP added, such opprobrium is not the same thing as a breach of the moral sensibilities of people in any particular community.

While many universities stake out a range of reasons that faculty members can be dismissed for just cause, including neglect of duty and serious violations of academic conduct, morality clauses can be especially tricky to define. Like the late Supreme Court Justice Potter Stewart’s famous definition of pornography (“I know it when I see it”), breaches of morality can be more productively identified on a case-by-case basis than in broad, sweeping generalizations, according to legal observers.

"To me there is no bright-line test. These things become relative and comparative matters,” said Ann H. Franke, a lawyer who consults widely with colleges on legal issues. “There just is no template -- if you do x, then the proper situation is y -- because of mitigating factors such as past history, remorse and extenuating circumstances. There is a range of appropriate sanctions.”

Adding to the puzzle in New Hampshire was the qualifier “grave,” which the arbitrator in the Larkin case, Michael C. Ryan, described in his ruling as rare for morals clauses (an assessment with which other legal experts agree). Ryan wrote that the word grave “clearly signals that the parties did not intend every act of moral delinquency to be just cause for discharge. Only grave moral delinquency meets that standard.”

In April, Ryan determined that, while Larkin had behaved terribly, his conduct did not qualify as grave. This was true, Ryan argued, when the incident was put in the context of several mitigating factors: Larkin had a clear record before the incident, the $1,000 fine levied against him was lower than the $1,200 maximum allowed (and $500 of it was suspended), and he sought a mental evaluation before the court ordered him to do so; two experts deemed him to be suffering from a sexually compulsive disorder that was worsened by a low-grade, chronic depression, which didn’t absolve but helped explain the incident; they also agreed that Larkin did not pose a threat to others and had a very small risk of repeating the offense.

In his ruling, Ryan said it was safe to assume that “some proportion” of UNH’s constituents would see Larkin’s act as reprehensible and a grave moral delinquency. “But the contractual standard,” wrote Ryan, “cannot depend on the possible future opinion of an unknown proportion of the public.”

The arbitrator also took stock of the media uproar that the incident had provoked and the damage it had caused -- to both Larkin and the university. But the outrage should not alter the intent of the contract, argued Ryan. “The parties, however, could not have intended that the news media’s sensationalistic choices, or the self-aggrandizing attentions of bloggers, serve as the measuring stick for what constitutes grave moral delinquency,” he wrote. “The criminal law and criminal-justice system reflects the more deliberate, considered judgments of New Hampshire society regarding the moral gravity of [Larkin’s] crime.”

Ryan determined that Larkin should be suspended without pay for the fall semester and allowed to return to the faculty on a probationary basis. The ruling mirrored the findings of the Professional Standards Committee of UNH’s Faculty Senate, which had considered the incident and issued to the administration a non-binding recommendation that Ryan called an “intelligent, balanced reconciliation” of the interests in the case.

The arbitrator’s decision came to light last month when a reporter from the Union Leader inquired with the faculty union, the AAUP, on the disposition of the case. Disbelief and incredulity followed.

Governor John Lynch said Ryan’s decision “was wrong and that this professor does not belong in a classroom.” Two other elected leaders called the decision “disgraceful” because it allowed a “black mark” to return to campus -- which the Speaker of the state House described as “contemptuous of the students.”

The university said it was “disappointed” in the outcome and would place Larkin on probation for three years after his return and put a formal letter of reprimand from the president in his personnel file. “Officials are in the process of determining Larkin’s responsibilities when he returns to campus with an emphasis on ensuring his conduct will not further adversely impact the university community,” Erika Mantz, a UNH spokeswoman, said in an e-mail.

Some blasted the union's stance in defending the contract’s language. One editorial derided what it saw as the union’s “astounding arrogance.” Another said it “defies all reason.”

The union distinguished the particular incident from the larger principle. “No one is saying that what Professor Larkin did was good,” said Deanna Wood, president of the UNH-AAUP and an associate professor at the library. “We’re protecting the contract. We’re not protecting Ed Larkin. That’s our job. That’s our responsibility.”

While the Larkin episode captured recent headlines, there has been no shortage of accounts of professors and administrators allegedly behaving badly. Many times, these incidents raise serious issues of morality, crime and punishment, due process and acts conducted in public and private spheres -- all of which comes wrapped inside a steaming hot pile of a PR nightmare -- which can make it difficult for officials to thoughtfully weigh competing needs and the larger ramifications of their decisions.

“Any time there is something as controversial as this is -- as one can see from the coverage of this and as the arbitrator discusses from the decision -- it can have repercussions well beyond the case that’s involved,” said Ada Meloy, general counsel for the American Council on Education.

In recent weeks, a physics professor at Fairleigh Dickinson University and a former president of the University of New Mexico have been arrested on counts related to allegedly running a prostitution ring. A professor of political science at Columbia University has pleaded guilty to a misdemeanor count of attempted incest and remains on leave. All of them were in good standing in terms of their job duties when their alleged non-campus activities got them in trouble.

It is too soon, in many of those cases, to know how each will play out, but the different policy stances of each university are notable. Fairleigh Dickinson’s faculty handbook says adequate cause for termination includes charges that are “grave and extraordinary,” but it also places these squarely in a legal context, defining them as resulting in a conviction of a felony or high misdemeanor. New Mexico and Columbia have standards that are more open to interpretation: New Mexico cites the AAUP’s language on moral turpitude while Columbia lists “serious personal misconduct” among its causes of action.

Many of these cases demonstrate how shades of gray that can characterize morality clauses in faculty contracts can become even more difficult to see clearly when sex is involved, said Franke.

“Each of these situations involves potential moral delinquency and they all involve genitalia in one form or another, and in our society those body parts are often associated with moral delinquency,” said Franke. “In our sound bite culture, it’s easy to generate outrage. It’s easy to overlook any mitigating factors. As a society, we paint things as black and white when really there’s a lot more at stake.”

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