Iowa Academe, Summer 1997
Judge lambastes ISU administration for mishandling sex harassment case
From the President, by Warren Zemke
Report: Iowa Committee A, by Greg Scholtz and Ed Kottick
Judge lambastes ISU administration for mishandling sex harassment case
In a strongly worded ruling, District Court Judge Timothy J. Finn ordered Iowa State University on May 9 to reinstate Michael R. Simonson to his responsibilities as a tenured full professor in the College of Education. The ISU administration had suspended Simonson after learning that a student intended to file a complaint of sexual harassment against him.
Simonson had asked the court to ascertain whether "an employer ... can strip a tenured full professor of all his rights and duties except his paycheck without giving him a hearing to inform him of e details of the allegations against him and the opportunity to respond to the allegations."
In reaching his decision, Judge Finn found that the procedures employed by ISU administrators in suspending Simonson were "so ... flawed as to be a denial of the most basic and fundamental requirements of due process."
In his ruling (which did not address the charge of sexual harassment), Finn detailed a number of due process violations, but the essence of his critique was that the ISU administration imposed a severe sanction upon Professor Simonson without affording him the opportunity for a hearing m which he could face his accusers and respond to the allegations against him.
Finn's decision should serve as a warning signal to colleges and universities whose sexual harassment policies fail to take into account the special circumstances of the academic workplace.
The policy recommended by the AAUP (as contained in Sexual Harassment: Suggested Policy and Procedures for Handling Complaints) does take the special circumstances of the academic setting into account. It not only contains a definition of sexual harassment that protects academic freedom in the classroom, but requires sufficient fair process including review of the charges by elected professional peersbefore a faculty member is punished.
As Committee A points out in Due Process in Sexual Harassment Complaints, "sexual harassment ... is not somehow so different from other kinds of sanctionable misconduct as to permit the institution to render judgment and to penalize without having afforded due process."
Unfortunately, ISU is not the only academic institution that has failed to adopt a sexual harassment policy that accords with AAUP recommendations. As a result, cases like Simonson's are all too common. According to Due Process in Sexual Harassment Complaints, AAUP staff have noted "a disturbing number of recent cases in which a severe sanction has been imposed on a faculty member accused of sexual harassment with no opportunity having been afforded for a hearing before faculty peers. Investigations of complaints, often conducted by the affirmative action officer or another [administrative official], have led in many instances to peremptory administrative action against the accused faculty member without ... a faculty hearing of record. Accused faculty members ... have been suspended from their responsibilities before any hearing.... Administration-imposed suspensions have been allowed to linger on, with no faculty hearing on cause for suspension ... and with the conditions for lifting it equally uncertain."
The scenario just described is virtually identical to the way in which ISU administrators handled the complaint against Simonson. According to court documents, the facts of Simonson's are as follows:
On the evening of February 11, Camilla Benbow, the dean of the College of Education, called Simonson to tell him that he was being placed on "administrative leave with pay" immediately. Benbow also informed him that permission to attend a conference that week was withdrawn and that he would no longer have access to his office. She said that a formal complaint of sexual harassment might be filed against him the next day and that his suspension would be in effect until that charge could be investigated. When Simonson asked for details about the complaint Benbow declined to give him any further information.
Before reaching her decision to suspend Simonson, Benbow had consulted with Carla Espinoza, ISU director of affirmative action. It was Espinoza who recommended that Simonson be suspended immediately.
On February 12, Simonson went to Espinoza's office to find out more about the charges to be filed against him. Espinoza said that she was unable to give him "specific details" since the student had not yet filed a written complaint. Two days later the student still had not filed a formal complaint, but Espinoza nevertheless provided Simonson with her written version of the charges the student had made orally.
On February 14, Simonson came to the provost's office with a letter demanding an appeal of the suspension BV 4:00 that day. Since Provost John Kozak was out of town, Associate Provost Edwin Lewis met Simonson's request by holding a meeting later that same day. Besides Lewis and Simonson, attendees included Benbow, Espinoza, two university attorneys, and Stephen M. Terrill, Simonson's attorney. Lewis, however, ended the meeting without reaching any decision, stating his intention to wait for Kozak's return before finalizing the appeal.
When Kozak did return, on February 17, he and Lewis decided to uphold Benbow's decision to suspend Simonson, although they did make some minor changes to the conditions of the suspension.
Finally, in the late afternoon of Monday, February 17, six days after being informed of his suspension, Simonson received a copy of the written complaint against him.
On February 24, Simonson appealed his suspension, now finalized by the provost, to the Faculty Senate Committee on Judiciary and Appeals, which immediately assigned the appeal to an ad hoc committee.
On March 26, the Committee on Judiciary and Appeals unanimously adopted the report of the ad hoc appeal committee, which had recommended Simonson's "immediate reinstatement."
The report focused on flaws in the procedures by which the administration had sanctioned Simonson. In particular, it noted
The committee singled out Benbow, Espinoza, and Paul Tanaka, a university attorney, for particular criticism. It was "deeply disturbed that Dean Benbow would treat unconfirmed rumor and hearsay in such a manner" and that she refused to give the ad hoc committee information necessary to its investigation.
Espinoza was criticized for withholding information from the committee, and Tanaka was criticized for urging the senate to drop the appeal in favor of the legal process, despite university policy.
The committee's report was submitted to President Martin Jischke on March 31.
On April 21, Jischke rejected the recommendation of the Faculty Senate, giving the following two reasons: 'because there is no loss of pay or title, the decision to place Professor Simonson on administrative leave in my view, does not constitute a sanction. Furthermore, even if the decision is deemed a sanction, sufficient due process has been accorded Professor Simonson."
(Finn's comment on this statement: "With all due respect to President Jischke, the Court finds that he is wrong on both grounds.") On March 19, having exhausted all internal remedies, Simonson filed suit in district court, naming Iowa State University, Camilla Benbow, Carla Espinoza, and John Kozak as defendants.
After analyzing these facts in light of the legal precedents, Judge Finn reached two findings.
First, he found untrue the university's argument that because Simonson had been suspended with pay, he had not been seriously deprived. In another place, Finn had called this argument "absurd."
The university, Finn wrote, "(1) has barred [Simonson] from teaching classes, (2) barred him from having contact with graduate students and research assistants, ... (3) locked him out of his office, ... (4) barred him from attending any conferences and (5) barred him from administering research projects." In short, "the University has taken away virtually every aspect of Simonson's position, duties, responsibilities, reputation, and prestige at the institution."
Second, as noted above, Finn found that the procedures employed by the university before suspending Simonson as well as the procedures available to him after being suspended were "woefully lacking." The [procedural] defects are so numerous," Finn wrote, "as to fail to meet even the most minimal due process standards."
These defects included
"It appears to the Court," Finn concluded, "that this
is a fundamental denial of the most basic constitutional safeguards for
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From the President
by Warren Zemke
After attending the Iowa Conference meeting in Iowa City on April 5 and the Leadership Training Institute in Chicago in April 19-20, I resolved to keep repeating in this column what we Iowa AAUPers need to hear, over and over again: we must not become complacent merely because no academic freedom or tenure or governance crisis is currently affecting us directly.
In the Winter 1996-97 Iowa Academe, I reminded readers of l Professor Linda Fisher's visit to Iowa State in October where she urged institutions to adopt sexual harassment policies consistent with AAUP standards. Apparently, judging from recent articles in Ames and Des Moines newspapers, administrators at ISU weren't listening. Finally in May, after three short months, the District Court stepped in and ruled that an ISU faculty member was denied due process in the investigation of a charge of sexual harassment against him (see front-page story).
At the spring conference meeting, national president Jim Perley identified the details behind the turmoil at the University of Minnesota. The Minnesota Board of Regents unilaterally decided to "undertake a comprehensive and systematic review of tenure." Proposed changes (e.g., an individual's tenure could be waived if a program was found unnecessary, or a post-tenure review code would be punitive rather than remedial in nature) forced the faculty to take a public vote on whether or not to accept collective bargaining. How else could the faculty tell the regents they had violated widely-accepted professional standards?
President Perley called the Minnesota action a "wake-up call to the profession." At least it seemed to energize faculty throughout the state of Minnesota, where AAUP membership increases were notable in private and public institutions alike. Will the Minnesota and ISU affairs wake up faculty in Iowa?
In Chicago, Assembly of State Conferences chair John Hopper informed us of a net growth nationwide in AAUP membership, mostly the result of alarms such as those heard at Minnesota and Adelphi.
But for chapters where no threats are in sight, there seems to be a slow decrease in membership. Ho hum, why worry? Besides, it is hard work to keep a chapter (or, for that matter, a state conference) alive.
Regrettably, that seems to be the case in Iowa. Our Iowa Conference membership is stagnating, and, except for some excitement at ISU, nothing alarming seems to be on the horizon. But that is precisely the challenge John Hopper directed at us. We shouldn't need a catastrophe to get us going; we in AAUP are professionals. We speak for those outside AAUP, as well as those within. AAUP is about professional standards. What would our policy manuals contain without the AAUP Redbook?
The highlight of the Chicago meeting was to hear Dr. Sylvia Manning, vice president for academic affairs at the University of Illinois, talk about the university's "Seminar on Tenure." The members of the seminar reported in February "that tenure is not only essential to the protection of academic freedom, but, properly administered, a way of securing quality control." They responded affirmatively to the question, "Does the tenure system, in theory and practice, enhance educational quality of the University of Illinois?" Our neighbors seem to have heard the wake-up call and examined the institution of tenure in their state.
Will Iowa AAUP members and chapters wake up? The first call should be
to increase membership so that our non-member colleagues hear more than
a whimper. The second call should be to address the issues head on, before
the managerial types destroy the tenure/governance system that has served
the profession so well.
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Report: Iowa Committee A
by Greg Scholtz and Ed Kottick
Arguably the most important group in the AAUP is national Committee A on Academic Freedom and Tenure. This standing committee of the Association is charged with developing, applying, and defending the foundational principles of the organizationacademic freedom, tenure, and due process.
The day-to-day work of national Committee A is primarily carried out by a handful of Washington office staff who spend much of their time on the phone talking to professors in trouble.
Any faculty member in a crisis, regardless of whether or not he or she belongs to AAUP, can dial 1-800-424-2973 and ask for assistance. The call will be put through to one of four staff members for Committee ABob Kreiser, Jordan Kurland, Jonathan Knight, or Norma Shulman. He or she will listen patiently to the professor's story before offering advice in light of applicable AAUP standards.
Committee A staff may do more than offer advice if AAUP principles are involved. They frequently write letters to the complainant or to the appropriate administrator expressing the Association's concern over apparent violations of AAUP standards, and these letters often produce good results.
If the situation at an institution is grave enough and if the administration refuses to address the concerns, the full Committee A may initiate an investigation, and these investigations may result in the institution's being censured by the AAUP, with a report of the investigation published in Academe.
As effective as national Committee A has been in assisting faculty in trouble and in educating both faculty and administrators about AAUP principles, it is obvious that four already over-worked staff people cannot possibly help every faculty member who needs the kind of assistance Committee A offers. From this fact arises the necessity for Committee A activity on the state level.
While a state Committee A cannot speak for the Association with the same authority as can the national Committee A and while its members are typically not as experienced or knowledgeable as national staff, a state Committee A can nevertheless be effective in ways the national committee cannot.
As colleagues helping colleagues, state Committee A members, for example, can visit a campus to mediate a dispute, talk to an administrator, or act as an AAUP observer in a critical meeting. They may have the time to take long phone calls in the evening or to sit down with complainants and help them to moderate the tone of their written communications.
Several recent Iowa Committee A cases serve to illustrate how effective state activity can be.
The first involves a faculty member at a private four-year college who was coming up for tenure. Despite earlier favorable reviews this professor received a unanimous negative vote from the four colleagues in her department.
A consultation with several members of Iowa Committee A made it clear that serious irregularities had occurred in the process of reaching the departmental decision.
One of these Iowa Committee A members assisted the professor in drafting a reply to the negative departmental letter. He was also able to assist institutional officials in addressing the procedural defects. The department vote was declared invalid, and a new committee was formed. The Iowa Committee A representative was invited by both the faculty member and the Dean to attend several meetings as an observer to help insure that the faculty member received due Process the second time around. After the this review was completed, the faculty member was awarded tenure.
The second case involves an associate professor at another four year institution. She was informed that there had been serious student complaints about her performance. After investigating these com plaints, the administration had determined that she was to undergo a special evaluation. A Committee A representative met with the college's dean and pointed out to him that the faculty member had never been informed of the allegations against her, had never been given an opportunity to defend herself or to confront her accusers, and had been the unwitting subject of an ongoing investigation of several months duration. He convinced the dean that these procedural lapses amounted to a violation of her right to academic due process.
The Committee A member continued to assist the faculty member in lengthy negotiations with the administration until eventually the allegations were dropped.
Subsequent events revealed that the faculty member had been the target of a few disgruntled students who were attempting to discredit a teacher with an otherwise sterling record.
The quality of her work was recently affirmed when the college promoted her to full professor.
Not every case ends so happily but we hope that all our efforts are marked
by the same kind of commitment to defending the principles and standards
and standards of the profession.
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