More on the Barnett story
The story about the University of Colorado beginning the steps of firing associate professor of philosophy David Barnett (previously) has been on the radio and television news here in Boulder.
Here is some further info on the story:
· Some philosophy students have come to Barnett’s defense.
· Barnett will be challenging the decision by appealing to the university’s tenure and promotion committee, and in court if necessary, basing his case on “claims the university violated his First Amendment right to free speech and the Colorado statute that protects whistleblowers.”
· The alleged assailant was a philosophy instructor and doctoral student—not Barnett—who, it is claimed, sexually assaulted a fellow female graduate student in philosophy. He is no longer at the University of Colorado, but is a philosophy instructor at another institution.
UPDATE (8/8/2014): A video message from CU-Boulder Chancellor Philip P. DiStefano.
UPDATE 2 (8/8/2014): Two personal notes. First, I would like to thank the commentators on this thread for their thoughtful, careful, and fair-minded remarks and questions. I am grateful to have not had to do too much moderating at this thread, especially since—and this is the second note—I am currently attending the Rocky Mountain Ethics Congress at the University of Colorado and it is not easy to be a good conference citizen and attentive blog moderator at the same time. The conference, as usual, is terrific, but of course there is, understandably, quite a bit of sadness and concern stemming from this recent news and the other events in the department regarding the climate for women . There are a lot of good, well-meaning people who work and study here, and—full disclosure—I am friends with several of them. They take these problems very seriously, and are working hard, within the complicated and uncertain messiness of real life, to make their department a better place.
I’m surprised to see a few other sites — not this one thankfully — saying that Colorado is moving to fire Barnett “for retaliation” when, as the Colorado papers have reported, Colorado has not yet stated the grounds for the dismissal charges.
As I understand the reporting so far, Barnett was accused of retaliation but no finding was reached concerning that accusation. A financial settlement was reached between the complaining party and the university but the settlement did not involve Barnett’s admission to anything nor the university stipulating any finding against Barnett.
In the article discussing the dismissal process at Colorado, the university declines comment on the grounds for the proposed dismissal and mentions various possible grounds that it seems could be alleged in this case.
That sounds right. It seems the critical sequence is this:
– student files the claim that she intends to use, citing “retaliation” as the (main) reason
– CU hires an outside investigator to look at the issues.
– Based on that, and likely other reasons, CU decides to settle with the student.
– CU also decides to begin termination proceedings against Barnett
-if CU has formally specified the exact cause they are citing, it is not yet public.
The local paper has printed the very short list of reasons a tenured faculty member can be dismissed. “Retaliation” isn’t one of them. But some of the other things that have been mentioned: discussing a student’s sexual life, starting an independent investigation, etc, would probably be characterized as one of the allowed reasons for dismissal, eg unprofessional conduct. It does seem clear that the dismissal is connected to the report that triggered the student’s retaliation claim, even if the dismissal does not cite it directly. That’s how I read it, in any case.
The last case of termination here took years to play out. I wonder if this will be the same.
If I recall, the last case of termination was Ward Churchill, who was widely reported to have been fired for political reasons that sent his opponents on a massive fishing expedition through his back catalog to try to find instances of plagiarism. Not exactly surprising that *that* dragged on for years.
If I’m understanding all this, a woman charges a fellow graduate student with sexual assault. She reports the assault to the office of harassment and discrimination. They find that this guy is guilty of violating the university’s policies on sexual harassment. The university does not re-hire him (but hey, another institution does, and he is currently teaching philosophy *somewhere*). So, a certified sexual harasser is out there teaching philosophy, but we don’t know where. So, there’s that.
The professor decides that this is all a gross injustice against his student. He decides to take matters into his own hands, and to investigate the victim’s sexual history, because apparently in his eyes, this is evidentially relevant to whether she was assaulted by one of his students. I suppose if she were known to be meek and chaste, then her claims would be more credible, but since it turns out she was *promiscuous* we can then cast a doubtful eye on the whole affair?
If all this is right (again, this is gleaned from the articles posted here, and I’m in no position to judge whether or not its fair), it is extremely disturbing. Let’s stop and think about this for a second. Imagine being a graduate student and knowing that a professor is going around “investigating” your sexual past with members of your department, asking into personal and private details of your sexual behavior, all in order to suss out whether or not it is truly possible that you were sexually assaulted. Can you even imagine that? I can’t. I’m sure I would have left philosophy and never looked back.
To me, the question of “retaliation” isn’t the one we should be asking. We should be asking whether it is reasonable or appropriate for a tenured professor to be making inquiries about a female graduate student’s sexual history, especially on behalf of a former student he mentored. Regardless of the merits of the internal university investigation, I think professors have no right or cause to set themselves up as grand inquisitors of their student’s sex lives. That is not only completely inappropriate faculty behavior, but also completely irrelevant to whether or not a woman was in fact assaulted. A virgin can be the victim of assault. A married woman with kids can be a victim. A sexually active single woman can be a victim. She can be a victim if she is flirting with men at a party or cold and indifferent to them.
Of course, its impossible right now to judge, since we don’t know all the facts. But at least as reported, this is very disturbing indeed.
While it would indeed be wrong for a Prof to investigate a student’s actions outside the classroom, he didn’t intentionally do that (if he is to be believed). This is a fuzzy case: you want to check on the procedures of an Office at your Univ., because something it did/says sounds fishy to you. Seems legit. In doing so you end up finding out details that are none of your business. What should you do with that info? Certainly not use it to harm, but I can see it possibly being used in the way he claims. That said, I’d probably encourage the student to get a lawyer to do what Barnett did:
From the DailyCamera article:
“Barnett, however, said through his attorney that he never investigated the victim or her sexual assault, but rather wanted to look into the Office of Discrimination and Harassment’s handling of the case.
In his report, which Barnett sent only to DiStefano and CU President Bruce Benson, according to his attorney, Barnett described how the Office of Discrimination and Harassment’s investigation mischaracterized or excluded information from witnesses.
Moore, Barnett’s lawyer, said his client included sworn statements by nearly all of the third-party witnesses cited in the Office of Discrimination and Harassment investigation.”
How is it that Barnett came to wonder if something was fishy in the OHD report? Was the report public or sent to the faculty? That would surprise me. It’s hard to think of a legitimate way for an outside party to get involved at all, let alone notice that evidence seemed off, but maybe my idea of what’s confidential is in error.
““Barnett, however, said through his attorney that he never investigated the victim or her sexual assault, but rather wanted to look into the Office of Discrimination and Harassment’s handling of the case.”
When your “look into the Office of Discrimination and Harassment’s handling of the case” results in a 38-page report critical of that office’s handling of the case that includes “sworn statements by nearly all of the third-party witnesses” cited in the office’s investigation, how can you reasonably claim not to have investigated the victim’s sexual assault?
There are many things a professor can do to help someone who believes they have been treated unjustly by a University Office. As anonymous above suggests, he could assist the student in contacting a lawyer. The lawyer could then conduct the appropriate interviews and, if there are significant findings of misconduct or mismanagement, file a case against the University. But, as Jennifer rightly notes above, I would be horrified to discover that a professor in my department was interviewing people in a manner that involved discussions of my sexual history even if uncovering that history was not the professor’s aim.
Just want to add how incredibly grateful I am to Justin for providing a public forum for constructive discussion of these incredibly important, but emotionally fraught topics. I found reading this whole thread very helpful.
Jennifer, I agree with you completely if those are the facts of the case. But here is an excerpt from a story (http://www.dailycamera.com/cu-news/ci_26296527) that quotes a third party who was involved both with the initial case and with Barnett’s subsequent actions:
Kyra Rehman, a former undergraduate student in CU’s philosophy department, said she was at the party where the alleged sexual assault occurred. She is listed as a witness in a Boulder police report about the incident.
Rehman said Barnett approached her to see whether they could talk about the testimony she provided the Office of Discrimination and Harassment about that night.
Rehman, who said she was friends with both the victim and the alleged assailant, saw a copy of the Office of Discrimination and Harassment’s findings and noticed inconsistencies in its depiction of her testimony.
When she talked with Barnett, they only discussed the Office of Discrimination and Harassment findings and her testimony.
“At no point did Barnett make any judgments on anyone involved in the case,” Rehman, 24, said in an interview with the Camera. “Our conversation was purely related to ODH and the way they handled this.”
“Barnett never, ever told me who he thought was guilty or innocent, or who he thought was right or wrong. He just noticed inconsistencies in the report.”
A tenured professor asking an undergraduate to revisit her testimony with him personally is a potentially very fraught situation for that undergraduate. Let’s not forget that undergrads are trained to want to please professors, who are authority figures for them. Maybe none of that was a factor. But the fact that those can obviously be factors are the reasons why we have legal proceedings and not private fact finding missions. This is really an issue about how it is reasonable for professors to behave in light of harassment claims.
czr: I was just about to post a link to that very piece, but to reach a very different conclusion from yours!
While the piece is supposed to be favorable to DB, part of what emerges from it is that DB actually took it upon himself to go and speak to someone who was at the party, who was moreover an undergraduate student at the department, about what may have transpired at the event. Even if we take DB at his (lawyer’s) word that his interest was purely to ensure the accuracy and fairness of the ODH report, it doesn’t seem to me remotely OK for a faculty member to do this by taking it upon himself to talk to other members of the department – especially other students – to verify what may or may not have happened at the party.
Imagine: I’m a graduate student who reports being sexually assaulted by a fellow graduate student to the relevant office at my university, who, along with the police, conclude that this was a case of sexual harassment and take corresponding action against the harasser. Now, suddenly, a faculty member in my own department takes it upon himself to verify the accuracy of the findings by the university, and proceeds on his own to interview witnesses etc., eventually coming up with a “report” of his own. This is definitely not acceptable behavior for any faculty member – and that’s even assuming that the investigation by the faculty member did not delve into my sexual history etc. and focused simply on the events at the party where the assault was supposed to have taken place.
Imagine. A student of yours is accused of sexual assault by a fellow student and an internal university investigation finds that the accused student violated the university’s sexual harassment policy. You get a copy of the Office of Discrimination and Harassment’s findings — maybe (in answer to Anon 11:07) the accused student himself showed you a copy. You notice inconsistencies and other infelicities. The ODH’s report just doesn’t add up, as far as you can tell. You start to worry that the university has perpetrated a substantial injustice against your student. What do you do?
Here’s what you don’t do. Don’t launch your own investigation. Don’t start digging around and interviewing students. If you think something is amiss, advise the accused to get legal counsel. If nothing else, you probably do not have any training or expertise in conducting an investigation, in getting accurate witness interviews, etc. You might easily find yourself knee-deep in unintentional conflicts of interest, in unintentional bullying (hard for a third-party grad student to resist your requests to discuss the topic), etc.
Anon 941 suggests “you want to check on the procedures of an Office at your Univ., because something it did/says sounds fishy to you. Seems legit.” Check with the office about what their procedures are is one thing. Launching your own private investigation is another.
I agree with you completely. Vigilante justice is a bad idea here (probably in general). Professors are not qualified to conduct these investigations properly, nor are they qualified to determine whether they are in fact without bias in conducting them. Especially problematic is the fact that a tenured professor asking graduate students to revisit their testimony (if this in fact happened) puts that graduate student in a very awkward and compromised position; surely the student knows that the professor thinks a certain, different conclusion might be warranted (otherwise, what’s the whole thing about). Moreover, there are other legal avenues to take to rectify a supposed injustice in these cases. Let’s grant for the sake of argument that the finding is flawed. I think we can all agree that taking the matters into your own hands in this way is neither prudent nor just to anyone involved. it is especially unjust to the victim of assault.
I’m not saying that the professor in questions should be fired. I’m not in a position to make such a determination, and I wouldn’t dare venture to do that even if I had more information. I’m merely expressing my concern about the facts as I understand them, and the practical reasoning that seems to lie behind the professor’s decisions, and the assumptions that might be fueling the whole mess as it stands. And what a mess it is.
Also, isn’t the report supposed to be confidential? Can anyone clarify that? Because that also matters to the ethics of sharing its findings with third parties in a personal investigation.
I want to third the concerns raised by Jennifer Frey and Zara. Although I cannot comment on the case itself (we have little information), I can say that, given the information we *do* have, it seems that Barnett appears to have been blind to a point that should concern his department.
For one, he decided to conduct this investigation of his own accord apparently without consulting either his colleagues, a lawyer, or the University itself.* Why he chose to do this would be important to know but, in itself, demonstrates a significant lack of faith in his peers and the shared governance system at Boulder. These are concerned that should be raised publicly, not privately. They are also concerns that he lacks the standing to raise. I am deeply puzzled why he felt the need to go about this the way that he did. Zara is right on about the problems this raises.
Second, he also seems to have been (and possibly continues to be) willfully blind to how his power and authority would impact graduate student responses to his questions. Further, there are concerns here relating to stereotype threat and implicit bias with regards to his own receipt of the fruit of this already poisoned tree. This kind of crusader might very well prove toxic to a department’s climate all on his own. While he of course deserves to a defense (and we are not entitled to receive all of the details), the information acknowledged by all parties (the private investigation, the 38 page report, etc) is troubling enough.
*We don’t know that this is certain at this time.
I guess what’s bothering me most about what Barnett did is this: It seems to me obvious that in even reading the OHD document involving a sexual assault/harassment case between two students, that he is likely to get private information about students in his department that he has no right to. Even if the alleged harasser comes to him to discuss it, he is likely to get information about the other student that he has no right to. Any reasonable person would recognize this and refuse to accept the document or listen to one party’s characterization of that. So that’s already kind of astounding.
But to go further and revisit the testamony with the witnesses – that is guaranteed to put him in the middle of information that should be private. How is that not an obvious non-starter?
Like others, I’m not sure if this is a fireable offense. But if Barnett truly felt that the one and only way for a wrong to be righted was for him to personally investigate, then he should have resigned before investigating: then he wouldn’t have been in a position of authority over the students he was questioning, and more importantly, he wouldn’t be in the position of knowing private information of one of the students in his department. That would be ludicrous to do, rather than let a more proper investigation take place by more proper authorities, but at least it would be more in line with his purported goal of being fair and getting at the truth.
I agree with you that if Barnett agreed to read a confidential document, he made a big mistake. Clearly the correct path would be to decline and to instruct the student to seek legal counsel.
Some of the proposals posted in the above discussion appear to be unrealistic, such as the suggestion that David Barnett should have resigned his position in order to then investigate ODH. To address a miscarriage of justice against some person X, it cannot normally be expected that person Y would voluntarily take upon himself a harm equal to the one that was just perpetrated against X, particularly when Y lacks clear evidence that doing so would even succeed in remedying the original injustice.
Another proposal was that Prof. Barnett should have simply advised student X to retain an attorney, thereupon washing his hands of the case. Lawyers are extremely expensive and most graduate students cannot afford their services. In addition, because graduate student instructors are at-will employees with no right to continued employment, it is not clear what the legal claim would be, even if the student was innocent of sexual assault.
Perhaps most important is the fact that if X’s name were to be revealed, as it most probably would in the course of any lawsuit, X’s academic career would be effectively ended, regardless of whether X was in actual fact guilty of any wrongdoing.
The discussion here is also underinformed. Professor Barnett did not conduct a general investigation of anybody’s sexual history. Rather, Barnett investigated only the specific ODH case in question; granted, learning about that case entails learning some information about the complainant’s sexual behavior.
The version of events that I have heard was something like the following. Student A claimed that B unsuccessfully attempted to rape her. A faculty member found out about A’s story and pressured A into reporting the alleged incident to ODH, which A otherwise had no intention of doing. The police looked into the case and found no grounds for taking any action; ODH, however, found B guilty and had him dismissed. Barnett heard about the case and spoke with some of the witnesses, one of whom was a “character witness” whom A herself had selected to speak with ODH. A’s own character witness believed that A was lying and provided an explanation of why A was lying; this information, however, was entirely omitted from the ODH report, which simply took the complainant’s allegations as unvarnished truth, distorted the testimony of other witnesses, and suppressed a variety of other relevant and compelling evidence that contradicted the complainant’s version of events. In addition, Barnett had reason to believe that this was not a fluke but that ODH has a practice of assuming the guilt of those accused. Barnett tries informing the administration of this problem, including the manner in which ODH suppressed relevant evidence in their final report. It is this action on Barnett’s part that is now being characterized as his “retaliation” against A and as his spreading rumors about A’s “promiscuity”.
The administration disregards Barnett’s concerns and instead punishes the philosophy department as a whole for its allegedly rampant sexual harassment problem. Barnett starts to criticize the administration within the university and openly challenges the new, administration-imposed chair in departmental meetings. It is after this that Barnett is served with a termination notice, with the administration declining to state the grounds for termination. It is not difficult to think of the explanation that the administration is seeking to punish Barnett for criticizing them, while also intimidating other faculty members and graduate students into remaining silent about the administration’s wrongful conduct.
In a situation such as this, the most important concern involving justice would not be that of whether David Barnett overstepped his proper authority in gathering information about a university ODH case. University harassment and discrimination offices have a great deal of power, as careers may be ended by their findings. Therefore, if such an office has a practice of assuming guilt and distorting or suppressing evidence in its investigations, then this information has to be brought out and the problem in some manner addressed, even if doing so involves causing some people to learn facts about a student’s sexual history. In general, if one knows of a serious injustice which those in power refuse to remedy, we do not generally say that one morally ought to simply let the injustice go on because it is not one’s place to interfere with the established power structure or social rules.
I don’t have a position on the termination because I don’t have enough of the relevant facts, and I am sensitive to the need to protect faculty from punitive firing. But I find this response quite unsatisfactory because it seems to dodge one central issue. Did Barnett describe the student as “sexually promiscuous”? If so, if he believed that that was relevant to a charge of attempted rape, I am appalled.
I think that to say that Barnett described the student as sexually promiscuous would be an extremely and, on the part of the administration, deliberately misleading statement. A’s character witness offered the theory that A was lying about the events of the night in question in order to conceal A’s voluntary sexual infidelity from A’s boyfriend. This could be said to entail A’s sexual promiscuity, and one could therefore say that to report on the witness’ statement would be to spread a rumor about A’s sexual promiscuity. Were one seeking a way in which to portray Prof. Barnett in the most negative light, one could report this situation by stating “Barnett said that student A was promiscuous”, with no further context given, leaving the audience to infer that Barnett must have made the argument that a promiscuous person cannot be a victim of rape. I have not read the Barnett report; however, based upon what I have heard, the above appears to be the origin of the claim by the administration.
If this account is right, both the University and all those backing Barnett’s firing ought to be ashamed of themselves. I suppose we’ll find out whether it’s right as the case progresses.
“In a situation such as this, the most important concern involving justice would not be that of whether David Barnett overstepped his proper authority in gathering information about a university ODH case.”
There’s little doubt that the answer to this question is YES. For many of the reasons already brought up, Barnett felt like it was HIS responsibility to try and solve an institutional problem while ignoring the privacy, conflict of interest, and bias issues that would arise from such a crusade. Even on the most charitable reading, this is a case where someone’s “heart” was “in the right place” but who ended up breaching professional (and potentially legal) standards.
“In general, if one knows of a serious injustice which those in power refuse to remedy, we do not generally say that one morally ought to simply let the injustice go on because it is not one’s place to interfere with the established power structure or social rules.”
Absolutely, we agree that injustice should be stopped. Barnett chose a monumentally imprudent (shortsighted and privileged) way of stemming the perceived injustice.
Thanks, Anonymous2, for the additional details. From your phrasing, it sounds like you’re reporting second hand, but at least perhaps from closer sources than the Camera articles.
I’m the Anon that threw out the idea of Barnett resigning before investigating(not the one who posted at9:57am today), and I just wanted to clarify that I did not intend that as an actual recommendation. In fact I called it “ludicrous” precisely because it goes so far beyond what one would be expected to do. My only point in raising it was that I thought it was the only way a faculty member could do such an investigation while maintaining the respect of privacy owed to their students. For me, it was an argument that someone else should be doing the investigation, not an argument that he should have resigned.
This raises a question for me: does anyone know whether the independent investigator hired by CU (Fine) looked at the OHD investigation and document, or only at Barnett’s investigation?
Then just two other comments: when you say that the character witness had an explanation of why A was lying, do you mean they had evidence that A was lying? If so, that obviously should be included in the report. But an “explanation why she was lying” sounds more like what was offered was an opinion or a rationalization.
Finally, while I agree that the OHD should be challenged if it is suspected of distorting evidence and not doing proper investigations, I don’t agree that that justifies a professor invading student privacy to do so. That, too, can be a career-ender. Imagine being a student who has experienced sexual assault at the hands of a colleague or professor. Your choice would be to either get out, put up with it and work along side that person, or report it, knowing that not only would you have to go through the formal reporting system, but that your own faculty might also investigate it on the side. Getting out could easily be the only option.
If there isn’t a way to challenge OHD findings, there needs to be, because Barnett’s approach can’t be the right one, I don’t think.
No one here is “backing Barnett’s firing.” Everyone here — as they should — supports Barnett’s exercise of his tenure rights to the hearing process at CU, and they support his right to legal recourse should he feel dissatisfied with the results of that process.
What needs to be crystal clear is that everyone should ALSO support the right of the student in question to be free from retaliation for lodging a complaint with CU as “retaliation” is defined here under Title IX: http://www.justice.gov/crt/about/cor/coord/ixlegal.php#3.
On the side of the university, then, they have to fulfill Barnett’s contractual tenure rights to a dismissal hearing. They also have to fulfill their obligations to him under relevant employment law. AND they have to fulfill their obligations to the complainant under Title IX.
Indeed, but nobody has been able to say what Barnett did that constitutes ‘retaliation’.
Why would you expect that anyone would be able to say that? You’re asking us to compare actions A, A1, A2 … with legal criterion C when all we have available is sketchy news reports on the actions, even though we have access to criterion C.