Bloomsburg University must reinstate a professor it fired in 2017 over sexual relationships he had with two students, according to the appellate Commonwealth Court of Pennsylvania.
The decision upholds an arbitrator’s earlier order that Bloomsburg reinstate the professor with back pay, based on the finding that he did not violate the university’s consensual relationship policy.
Bloomsburg’s policy says that employees may not date or have sex with students or others currently under their supervision, but does not expressly prohibit relationships with past students. The university argued, ultimately unpersuasively, that the professor had violated public policy nevertheless.
The professor, John Barrett, did not immediately respond to a request for comment. Court documents say that he taught one of the students in question in 2015 and began dating her the next semester, when she was no longer in his class but still a student at Bloomsburg.
The unnamed student testified that she engaged in consensual sex with Barrett but would sometimes wake up to him touching her genitals without her consent. She said it bothered her but that she did not discuss that with Barrett at the time.
The pair ended their romantic relationship in mid-2016 but remained friendly until later that year. Soon after, the woman confronted Barrett about rumors that he was now sexually involved with another student on campus. The second student has since acknowledged the relationship.
In mid-2017, the first student complained to the university that Barrett had a pattern of targeting his female students and that Barrett had touched her when she was asleep and unable to consent.
Barrett was placed on administrative leave almost immediately, pending an investigation. Bloomsburg formally terminated him the next month, citing his lack of professional judgment in engaging in sexual relationships with two students and “engaging in sexual conduct” without the student’s consent.
Barrett’s faculty union, the Association of Pennsylvania State College and University Faculties, field a grievance on his behalf, on that grounds that Bloomsburg fired him without just cause. The case went to arbitration, and Barrett was awarded reinstatement and back pay. Barrett’s conduct didn’t violate any university policy against sexual harassment and discrimination because neither student was under his supervision at the time of the relationship, the arbitrator found.
In fighting that award and Barrett’s reinstatement, the university cited cases in which the state court had previously vacated arbitrators’ decisions based on a public policy exception -- namely Pennsylvania’s well-defined policy against sexual harassment. Bloomsburg relied heavily on the first student’s allegation of nonconsensual touching.
In his opinion for the Pennsylvania Commonwealth Court, Judge P. Kevin Brobson said that the Bloomsburg case differed from other cases cited by the university in that Bloomsburg sought to “vacate an award based on sexual conduct that occurred within the overall context of a consensual sexual relationship and asks this court to find that the conduct was criminal.”
While the first student alleged that Barrett manipulated her genitals without her consent, Brobson wrote, she continued to visit his home and have sex with him. She never brought up the touching, Brobson noted, and Barrett said it didn’t happen. And the arbitrator determined that if these acts had occurred, they happened in the context of a consensual sexual relationship and not as an act of sexual harassment.
While Bloomsburg is acting as if it must reinstate “a criminal,” Brobson wrote, the “obvious problem with the university’s contention here is that there is no record that [Barrett] was ever charged with, prosecuted for or convicted of indecent sexual assault stemming from the alleged acts.”
An arbitration award “is not the proper venue to litigate whether a grievant is guilty of a crime,” Brobson added.
Still, he said, noting the arbitrator’s comment that Barrett must going forward hold himself to a higher standard, “we are in no way ignoring [Barrett’s] appalling lack of judgment, especially as one who once held a position of trust” for the student.
The university said it is aware of the decision and in the process of reviewing it.
In March, Pennsylvania’s Supreme Court refused to hear Lock Haven University’s appeal of a lower court’s order that it rehire Charles Morgan, a professor of math it fired in 2016 upon discovering his decades-old conviction for child sex abuse. That lower court decision upheld an earlier arbitration ruling in Morgan’s favor. These decisions all have cited the fact that Morgan has not engaged in criminal behavior in the many years since his conviction. The statewide public faculty union also supported Morgan in his grievance.
Morgan is suing Lock Haven in civil court.