If only you knew the whole story …

by John Quiggin on March 13, 2004

In the case of the dismissal of tenured professor Nona Gerard from Penn State (details here, Brian Leiter cites the generic response

Thank you for your email. President Spanier is out of the country so I am responding on his behalf. I will be sure he is aware of your opinion. I can assure you that there is much, much more to this than you are reading in the papers. I hope you realize that the University is also limited in what it can say publicly about this case at this point in time, especially given that the faculty member has already indicated she plans to file a lawsuit. I can also assure you that the University’s hearing process was followed explicitly at every step of the way.

“We have never taken away anyone’s job for criticizing the quality of a program, and we never will. You should also know that when five members of the University community who heard over 40 hours of testimony in what was a quasi-legal proceeding would vote unanimously that the faculty member was guilty of grave misconduct, there is not just smoke but a lot of fire. For the faculty member to make public statements about due process not being served is understandable in her circumstances, but simply untrue.

“What you have been reading in the press has simply not reflected the whole story.”

As it happened, I recently received an almost identical letter in relation to a property dispute in which I am peripherally involved. In both cases, I’m tempted by the simple response MRD> But I think it might be worth exploring the issues a bit further.

There are really two implications in this kind of letter. The more creditable is that the information on which the decision relied must be kept confidential for reasons of due process but that, if it were public, the decision would be seen to be reasonable. The problem is that this kind of claim is hard to sustain when the information that has been made public about the case seems clearly inconsistent with the claim. In the Gerard case, for example, the statements that Gerard “demonstrates difficulties accepting supervision.” and that “the hostile communications of Professor Gerard go beyond what is permitted as free speech.” do not sound as if the grounds for dismissal were much different from those made public by Gerard herself. It’s hard to believe that the charges were so radically different from those described by Gerard as to justify, on their own, the extraordinary step of dismissing a tenured professor without notice.

The second, less creditable, implication, typically associated with phrases like “no smoke without fire” is that the real offence on which the decision was based is something other than that on which the committee made its finding. The classic example of this kind of thing is the case of Sir Roger Casement: convicted of treason following the Easter Rising, his execution was ensured by the secret circulation to jurymen and others of his private diaries, which included explicit descriptions of his homosexuality. Some Irish writers maintain that the diaries were forged, though this seems unlikely. But this is beside the point. Even accepting the harsh view of homosexuality that prevailed at the time, this could not justly have played any role in a decision on the death penalty.

I don’t take an absolutely purist line on this kind of thing. If a proper process found appropriate grounds for Gerard’s dismissal, knowledge of unrelated bad behavior might be relevant in rebuttal to a claim that leniency should be exercised in view of long and meritorious service. But it’s easy to make unsourced and unspecific imputations of this kind and effectively impossible to rebut them.

{ 8 comments }

1

Rok 03.13.04 at 2:40 pm

If you can’t talk openly about how a decision was reached, then it wasn’t reached honestly.
If you fear for a lawsuit, then you have no confidence in your decision.

2

Kevin Drum 03.13.04 at 3:16 pm

What does Gerard say?

In a case like this, doubt could be laid to rest by Gerard publicly giving Penn State permission to open the case files completely and signing a statement holding them harmless for revealing the information. (It doesn’t have to preclude her rights to sue for any substantive violation, only for having released this particluar piece of otherwise confidential information.)

If she does this, and they still refuse, I would say your suspicions are well founded. On the other hand, if Gerard refuses to do this, I would then wonder about *her* motivations.

3

T. Gracchus 03.13.04 at 4:47 pm

Employment laws generally bar public disclosures of the kind requested here. The university response is a generic response, without much meaning one way or the other. It is not at all clear that the employee has the right to authorize release or, that, even with such authorization it would be prudent for the university to comply. The employee could release all documents in her possession which were not deemed confidential by any other party, but the limits of that move are also marked. Commentary and complaints for example, are not hers to release. In short, due process and privacy requirements entail that it is very hard to form a reliable opinion on such matters until after at least the first round of formal proceedings are complete, and likely not until after civil trial.

4

pw 03.13.04 at 6:15 pm

Having watched from the edges a disciplinary proceeding at another university (in which a quite possibly guilty party with extensive representation was ostensibly cleared of wrongdoing) I’m perfectly willing to take at face value a university’s claim that litigation concerns preclude releasing a full account of what happened. It’s amazing, sometimes, what “due process” does to due process.

5

Paula 03.13.04 at 6:56 pm

I’m a returning-adult sophomore at Penn State’s main campus. When I originally matriculated at Penn State, I intended to major in Integrative Arts, which requires a student to self-design a curriculum integrating coursework from two or more majors culminating in a senior-year capstone project. The major is offered by the College of Arts and Architecture and has only been around for a couple of years.

During the process of information gathering it became clear to me that there was some sort of interdepartmental politics going on regarding the Integrative Arts major. I have no idea what the nature of this dispute might be or how it may differ between the Altoona campus and the main campus. What I do know is that advisors from some departments were very cordial toward me in my efforts while others were cold, even bordering on hostile, particularly from the Fine Arts department. In the end I decided that four years’ worth of dealing with this sort of thing was not an option. I declared the journalism major instead.

It does not surprise me at all that Gerard’s situation revolves around the Integrative Arts major. It seems to be a polarizing issue among Penn State faculty and I have no doubt that her dismissal is politically motivated. Departmental infighting, constitutionally questionable policies, incredibly irresponsible financial decision-making, disregard for students’ concerns, and deteriorating campus climate (including students’ physical safety) are hallmarks of Graham Spanier’s presidency.

I don’t know what the outcome of Gerard’s lawsuit could potentially be, but I hope it serves as a lightning rod to bring national media attention to the situation at Penn State generally.

6

Sebastian Holsclaw 03.13.04 at 8:06 pm

“The more creditable is that the information on which the decision relied must be kept confidential for reasons of due process but that, if it were public, the decision would be seen to be reasonable.”

Yes a very predictable response. But the disturbing thing is that most non-national-security confidentiality concerns are for the protection of the accused. To invoke them to protect the institution is a complete inversion of the justification for secrecy.

7

Timothy Burke 03.13.04 at 8:46 pm

Some universities allow individuals involved in personnel disputes of this sort to examine all files involved, with redaction of names and limited rights to take notes or record information from those files, on a read-only basis. Even on that basis, this often allows someone to turn up considerable evidence of procedural injustices and be confident of speaking more fully to the record involved.

I’m on record as saying this case is “bad”, by which I largely mean that any time you dismiss a tenured member of your faculty in the *middle of the semester*, that is a bad thing definitionally, even if it’s with cause. That’s so disruptive that it had better be for extreme cause. If there’s an extreme cause here, there’s no way for outsiders to see it. Moreover, academics know only too well that in many cases when insiders say, “Trust us, there’s a good reason for this” that they are not to be trusted, as John and others observe.

8

John Quiggin 03.13.04 at 9:15 pm

The discussion has helped me to clarify my thoughts a bit. Once you invoke the due process defence, you can’t resort to the kind of insinuation that characterizes this letter. A defensible reponse would have been the first para with the “much, much, more” sentence omitted.

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