Heavy-Handed or Spot On?

August 26, 2014

In headline after headline lately, the message is clear: Colleges and universities must do more to stamp out sexual assault and harassment.

But how much is too much? It’s a question some are asking right now at the University of Colorado at Boulder, where two philosophy professors have been sanctioned in recent months for alleged offenses that their supporters say do not merit the punishment they received.

One professor is facing dismissal for allegedly retaliating against a graduate student who said she was sexually assaulted by another philosophy student. The other professor has been reinstated after being barred from campus. His alleged offense wasn’t sexual in nature, but some on campus believe he was targeted for his affiliation with the department; last year, it was put on notice by the administration after an outside report detailed systemic sexual harassment in its ranks.

Meanwhile, the university says it’s merely doing its job – protecting students.

Brian Moore, a lawyer for David Barnett, the tenured professor of philosophy whom the university is seeking to dismiss for his role in an assault investigation last year, says there’s more to the story.

“The administration clearly communicated the intent to respond very severely in the case of further allegations, and unfortunately that’s the exact context in which the allegations against my client arose,” Moore said. “The fact is that their response is completely disproportionate to what my client is even accused of having done.”

Barnett, who declined comment, is accused of retaliating against a female graduate student who accused another male philosophy graduate student of sexual assault. Before Barnett became involved, the university’s office of discrimination and harassment found the male student had violated its sexual harassment policy and suspended and then did not renew his teaching position. (Note: This sentence has been updated from an earlier version to clarify the male student's employment status at the university.)

In response to that inquiry, Barnett wrote a 38-page report questioning the investigation. His lawyer said that Barnett felt the office of harassment and discrimination's query was plagued by procedural errors and bias -- mainly in terms of what witness testimony was ultimately reflected -- in ways that were unfair to the male student. But the female accuser said Barnett’s report and line of questioning with witnesses about what happened on the night of the alleged incident defamed her; she said Barnett questioned her character and sexual history. She hired a lawyer and recently settled out of court with the university for some $825,000; Barnett's report has never been made public. Both Moore and the victim’s lawyer declined to provide it.

Barnett was notified in July that the university was pursuing termination proceedings against him for allegedly retaliating against a victim of sexual assault, Moore said. He’s still employed, but requested and was granted a leave from teaching this semester in preparation for those proceedings.

He’ll have the right to appeal, but colleagues say the university’s response is heavy-handed and an affront to the department and to faculty rights generally. They say he was executing his academic freedom in questioning a university investigation he thought was flawed.

Supporters say the same about Dan Kaufman, another philosophy professor who was escorted by police to the dean’s office and barred from campus last year, before being made to meet with a psychologist. Kaufman declined to comment Monday, but an investigation by the American Association of University Professors’ Colorado Conference last year found that the professor had made a kind of “philosopher’s joke” to another faculty member, saying that he wouldn’t kill him unless he were “truly evil, like Adolf Hitler.”

Kaufman previously described the joke to Inside Higher Ed as “standard” for any intro-level philosophy course or textbook.

The professor is now back at Boulder but plans to sue the institution for $2 million in damages, the Daily Camera reported.

The progression of these two cases has the local and Colorado state AAUP “extremely concerned,” said Don M. Eron, a full-time, non-tenure-track professor of writing at Boulder and treasurer of AAUP’s Colorado Conference, as well as a member of the national AAUP’s Committee A on Academic Freedom and Tenure.

Eron wrote the April report for the Colorado AAUP that accused the Boulder administration of violating philosophy professors’ academic freedom in its response to a departmental climate report prepared by the American Philosophical Association. The philosophy association's report described “unacceptable sexual harassment, inappropriate sexualized professional behavior [and] divisive uncivil behavior” in the department going back years, but the document was never meant to be public. The university chose to release the report, however, and announced it was overhauling the department’s culture, including by suspending graduate admissions temporarily.

But the AAUP report -- which mentioned Kaufman’s case, before he had been reinstated -- said the overhaul was too extreme. Eron said Monday that the Barnett case was another example of the university apparently sacrificing faculty rights to address public perceptions that it was soft on sexual assault and harassment.

“Barnett has a hearing before the Privilege and Tenure Committee scheduled for late September,” Eron said. “This hearing will be the first due process that he's received.”

According to AAUP standards, Eron said, the dismissal for cause of a tenured faculty member is supposed to involve multiple levels of due process: an informal meeting, an informal hearing with a faculty committee, and a formal hearing. Finally, if there’s a negative recommendation from the formal hearing, the faculty member should have the opportunity to argue before the Board of Trustees.

“With Barnett, they're overlooking the niceties of the first two levels, and starting right in with the formal hearing,” Eron said, noting that there’s chatter among faculty members that the university is taking a hard line to change public perceptions about how it handles charges of sexual harassment. He pointed to the case of Patricia Adler, the sociology professor who was asked to resign if she didn’t rethink a controversial course. She was eventually allowed to stay, following lots of media reports criticizing the university’s approach.

Another faculty member in the philosophy department who did not want to be named for fear of reprisal said via email that he also thought the Barnett and Kaufman cases were “linked, and show that the administration is being overly heavy-handed, in response to criticism that they haven't been tough enough regarding sexual harassment and assault issues.”

He continued: “Barnett is being treated unfairly -- he wrote a document pointing out bias in [a university] report about an alleged sexual assault, and instead of praising him for being a whistleblower, the administration is trying to fire him. Regarding Kaufman, if the administration thought he was a threat to himself or others, they should have recommended that the police put him on an involuntary psychiatric hold. Having police show up to his class and parade him around campus before escorting him off campus is not a prudent thing to do to someone who was actually mentally unstable. I think this shows that the administration was just trying to publicly humiliate him, and make an example of him, and that they didn't actually think he was a danger.”

Ryan Huff, a spokesman for Boulder, said the university can't comment on specific personnel actions. But, he said via email, "we can say that any personnel actions we take are based on the facts of that case and are in no way related to criticism of any past action or inaction on other cases. We are taking appropriate and necessary actions to combat gender discrimination and sexual harassment across the campus."

He highlighted comments Boulder Chancellor Philip P. DiStefano made in a campus message earlier this month: "[Boulder] is actively engaged in the national dialogue on discrimination, sexual assault and sexual harassment on college campuses. My charge to the university is to take a leading role in addressing these issues, which are challenging universities across the country. I expect CU-Boulder’s faculty, staff and students to actively join in this effort, and to take personal responsibility for creating a safe and inclusive campus."

Patrick O'Rourke, a Colorado system vice president and university counsel, addressed Kaufman's claim specifically, saying: "The university has received Professor Kaufman's notice of claim. The university believes that it has acted appropriately, not violated Professor Kaufman’s rights, and is prepared to defend any lawsuits that are filed.”

Lisa J. Banks, a Washington-based lawyer for the female graduate student who settled with the university, said Boulder is doing the right thing reacting decisively to allegations of sexual harassment.

“The university is getting it right on sexual harassment and sexual assault on campus, as it should, and as all universities should,” she said. “Obviously this issue is getting a lot of attention these days and schools are taking a look at how they address it -- or how they haven’t addressed it in the past. From my standpoint, to me, it looks like Colorado is doing the things it needs to be doing to make sure this doesn’t happen again.”

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