From the Chronicle of Higher Education via Raya Fidel
Below the fold I have copied an article posted on the AAUP listserv by Raya Fidel. The article details a disciplinary hearing of Professor Peter Mills at Bellingham in 2005. The administration at Western Washington University conducted the hearing in private, deciding to suspend him without pay for two academic quarters. Washington State Supreme Court is hearing a debate over the the question of whether faculty disciplinary hearings should be public, to ensure due process. The Administration claims that it has a right to privacy because it needs to protect the confidentiality of students who filed complaints against Prof. Mills.
For the UW, this is a major issue since our administration has also claimed the right to over ride a faculty council decision on the fate of Dr. Aprikyan based on the University’s need to keep employment issues confidential. To THE-Ave, this seems to be an issue where conservatives supporting open government and liberals supporting free speech should find a common ground!
Professors’ Right to Open Disciplinary Hearings Disputed in Court Battle
By Peter Schmidt
Perry F. Mills, a veteran theater professor at Western Washington University, has a reputation for creating drama in the workplace. Over the years, he has been witnessed rattling an administrative assistant in his department by calling her “stupid bitch” and “white trailer trash.” He unleashed insults on his fellow faculty members and his students, calling a male colleague “a stupid faggot,” and he once referred to an overweight female student as a “400-pound canary who warbles nothingness.”
When the university subjected Mr. Mills to a disciplinary hearing over his conduct back in 2005, however, it denied him one stage he badly sought: a public forum to question his accusers and present a defense of his actions. The university conducted the hearing in private, deciding in the end to suspend him without pay for two academic quarters.
Five years later, the university’s decision has left it and Mr. Mills caught up in a courtroom drama that could have major implications for other colleges. Before the state Supreme Court, the two sides are fighting over the question of whether faculty disciplinary hearings should be public, to ensure due process for the accused, or private, to protect the confidentiality of students.
Also at issue in the case is whether Washington’s public colleges are free to set their own procedures for dealing with disciplinary matters involving employees or are bound by a state law governing the adjudication procedures of public agencies.
The lawyer for Mr. Mills, James E. Lobsenz, is arguing that state law calls for such hearings to be open because private disciplinary hearings “provide fertile ground for arbitrary and oppressive government conduct.”
State lawyers representing the university argue, however, that such institutions are free to set their own employment rules, and there are “sound policy reasons for closing faculty disciplinary proceedings that involve student testimony.” Conducting such hearings in private, the lawyers say, protects students and fosters good labor relations by keeping unsubstantiated allegations from being aired.
Public or Private?
Last year, when this case was before a state appeals court, the judges ruled that the university’s decision to hold a private disciplinary hearing violated a provision of the state’s Administrative Procedure Act that calls for open hearings unless a court issues a protective order closing them off. The appeals court overruled the university’s decision to discipline Mr. Mills, who remains on the faculty, and called for a new, public hearing to determine whether the decision to suspend him had been warranted.
The appeals court’s objections to how the university handled the case were based entirely on questions of procedure, however. It did not dispute the charges of bad behavior leveled against him, mainly because he had not challenged them himself. The court noted that Mr. Mills had been the subject of complaints almost since he received tenure in 1994; that he had twice brandished a knife in class; and that in 2000 he had been admonished by Mark Kuntz, then the chairman of the university’s theater department, for making demeaning comments about women, gay students, and members of various minority groups.
In 2001, the appeals court decision recounted, Mr. Mills told a woman who had just joined the faculty that “she had better keep her legs closed, because she could not be expected to teach students the same way she got her doctorate.”
Now, in the state Supreme Court, the brief filed on behalf of Mr. Mills portrays him in a very different light from the appeals-court ruling. It says, “while a handful of students were very upset by the blunt way in which the professor sometimes expressed his view that they were lazy or stupid, a much larger group of students thought that he was one of the best teachers they had ever had.”
More important, the brief for Mr. Mills says he presented evidence at his hearing “that the overwhelming majority of his verbal misconduct had actually ceased several years before the disciplinary charges were ever brought against him.” The brief argues that the real reason Mr. Mills was brought up on disciplinary charges at that time was because he had publicly accused Mr. Kuntz of embezzling student course fees. (Mr. Kuntz denies the allegation, and a university audit of the department did not result in any charges of wrongdoing against him.)
The university hearing panel rejected the provost’s recommendation that Mr. Mills be dismissed—and opted instead to call for his suspension—based on its conclusion that the theater professor had acted without malice.
Had the disciplinary hearing been public, Mr. Mills’ lawyer contends, he would not even have been suspended. The testimony offered by Mr. Kuntz and student witnesses “might have been different and more truthful,” and other faculty members might have come forward to offer testimony raising doubts about the motives behind the proceedings and the validity of the students’ allegations. Secrecy simply encourages perjury and prevents witnesses with conflicting testimony from coming forward, the lawyer’s Supreme Court brief says.
But in counterarguments, university officials note that, in rejecting the request by Mr. Mills—and a local newspaper—to open the disciplinary proceedings, they were complying with provisions in the Faculty Handbook calling for such hearings to be private unless the hearing panel decides otherwise after consulting with the provost, and the faculty member agrees. The university’s Board of Trustees said it had grounds to seek a court’s protective order closing off the proceedings, if necessary, because confidential health information and student records covered by the Family Educational Rights and Privacy Act were part of the court record.
The university brief challenges Mr. Mills’ argument that the disciplinary proceedings
The notion of the administration protecting the privacy of the individual has merit, but it is too often abused. For example, while at the University of Oregon in the early 1990s, I received a mid-night phone-call from the off-campus ER from a female undergraduate who had been beaten-up by her student-athlete boy-friend. She was told later that any charges brought against the student-athlete would have to be made public, and for her sake (hint, hint, her reputation, not his), the incidence could be privately dealt with by the university administration. My point, protecting the privacy of the individual can have more to do with protecting the interests of the institution.
Regarding Professor Mills, whether he’s guilty of having done all those awful things he’s accused or not (he’s a real jerk if they are true), they’ve already been made public, whether within the walls of WWU or the greater society. He now has a right to have his accusers appear in the light of day with the proof… especially since this is his wish. It’s too easy for the administration to hold accusations of bad behavior over a professor’s head and to make his life miserable, tenure or not.
If I may add to Prof. Spigner’s comment, this pretense of protection of privacy also occurred in the Aprikyan case. Although the accuser, a rival professor, is well known and a person with more than enough power to protect herself or himself, the admin claims it had to act as it did 9and still does) to protect that person’s identity.
As a result, the UW has fired someone on the basis of a charge that is contaminated by self interest of the accuser AND will not allow that self interest to be discussed! Compound that by a procedure that never used a faculty based review and you have a procedure that none of us should accept in any public institution, much less a University.