CU Faculty Panel: Barnett Did Not Retaliate Against Student


The faculty panel responsible for reviewing the University of Colorado’s allegations against associate professor of philosophy David Barnett (previously) has concluded that he is not guilty of retaliation. While university administrators had wanted to fire Barnett, the panel voted 4-1 for a one year suspension without pay instead. Barnett had been accused of retaliation against a graduate student (“complainant” in the excerpts below) who had been found by the university to have been a victim of sexual assault by a second graduate student (“respondent” in the excerpts below). The claims of retaliation centered on Barnett’s own investigation and report about the way the university handled the allegations against the second student. While the panel recommended against firing, it did find that “several of his actions fell below the minimum standards of the profession.”

From the panel’s report:

The panel is unanimous in finding that the University did not show by clear and convincing evidence that Professor Barnett engaged in sexual harassment. The panel is also unanimous in finding that the University did show by clear and convincing evidence that Professor Barnett engaged in conduct that falls below minimal standards of professional integrity in several instances, although the extent of behavior felt to fall below standards of professional integrity varied among the panel members.

The panel’s decision is advisory, meaning that the final decision about Barnett’s case will be made by University of Colorado President Bruce Benson and the university’s Board of Regents.

According to the Daily Camera, “the panel concluded that while Barnett did not intend to retaliate against the female graduate student, his approach was inappropriate. Their conclusion that he did not retaliate against the female student was based on a definition of retaliation that considers intent.” The panel’s seventeen-page report is here.

Some excerpts from the report:

The correctness of the ODH Report Finding was not an issue the panel was asked to consider nor did the panel consider it relevant to the panel’s charge. The panel did consider the overall quality of the ODH report as relevant to the motivation for Professor Barnett and the Respondent to appeal the ODH finding. The fact is that the ODH report left much of the rationale for its conclusions unstated leading the Respondent and many of the ODH witnesses to feel misrepresented and to consider the ODH conclusion to be wrong. A more complete report that included the rationale and criteria for how the ODH handled all or most of the important witness statements would have been reasonable and appropriate for such an important investigation and the lack thereof became a motivating factor for the Respondent and Professor Barnett to undertake their subsequent activities. (p.3)

We find that the University did not show by clear and convincing evidence that Professor Barnett engaged in sexual harassment by retaliation. We have not seen (or heard) clear and convincing evidence that would indicate that Professor Barnett conducted his enquiry and wrote his letter and supporting document to the Chancellor and President with the purpose of retaliating against the Complainant. (p.7)

We find that the University did not show by clear and convincing evidence that Professor Barnett engaged in sexual harassment by retaliation by allegedly spreading rumors within the Department of Philosophy. (p.8)

The evidence substantiates that [Barnett’s] report was initially intended by Respondent and Professor Barnett to persuade lawyers to take the case to defend the Respondent on a contingency fee basis, as the Respondent was a newly minted PhD graduate who did not have the funds to pay up front. There was no evidence presented for retaliatory motive. (p.10)

[Barnett’s letter to the Chancellor]… used an alternative construct approach to make a case for ODH bias that necessitated creation of an alternate hypothesis (hypothesis #1) that was further unflattering to the Complainant. While creating alternative hypotheses may be useful in philosophical argument, its use and excessive elaboration in building supporting and refuting arguments in a sensitive sexual harassment context definitely showed extremely poor judgment. (p.10) [emphasis added]

We find that the University showed by clear and convincing evidence that Professor Barnett engaged in conduct that falls below the minimal standards of professional integrity in conducting his enquiries and filing this letter and supporting document as written as discussed below:
• Professor Barnett’s arguments in the letter and supporting document filed with the Chancellor and the President went well beyond what was needed to register a complaint/appeal. The alternative options of sending a letter of concern that focused on the ODH omissions and conclusions but omitted the excessive details, unnecessary arguments and alternative scenarios regarding the evening in question would have been a more effective means of registering a complaint.

• Many of the comments in the Barnett letter and supporting document were inappropriate (e.g., hearsay… sarcasm, etc.). (p.12)

What is the appropriate sanction?
a) Majority opinion for nontermination (four panel members)
Professor Barnett should:
1) Agree to never serve on any committee that makes decisions about the Complainant’s work or compensation (e.g. thesis committee or scholarship committee).
2) Never respond to anyone seeking a recommendation or reference for the Complainant with any response other than to indicate that he is unable to comment.
3) Be barred from entering the CU Boulder campus for one year.
4) Be suspended without pay for one year. 
(p.16)

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Carnap
Carnap
6 years ago

I am glad for what is left of faculty governance. Is it known when the administration will respond to the panel’s findings/recommendation?Report

jdkbrown
jdkbrown
6 years ago

Here’s an issue to watch going forward. The faculty panel relied on a “clear and convincing” evidential standard in reaching their decision. This is in accord with AAUP guidelines and, presumably, CU policy. However, recent guidance from the Office of Civil Rights has insisted that the proper evidential standard in Title IX cases is “preponderance.” It’s possible, then, that reliance on the decision of the panel will open CU to enforcement action by the OCR.Report

DC
DC
Reply to  jdkbrown
6 years ago

I think the OCR’s position on a mandatory “preponderance of the evidence” standard is legally flimsy, but I won’t bog down this thread with that.

I will say that to the best of my knowledge the caselaw for retaliation claims under Title IX (and Title VII, which is frequently used as a guideline for Title IX cases) exclusively involves claims against employers and managers of the plaintiff.

The idea that someone who doesn’t exercise authority over the plaintiff still being liable for a retaliation claim is just plain weird from a legal standpoint (though consistent with the weird positions the OCR has taken lately). Taking that expansive view of the retaliation prohibition, you could easily move to arguing that someone outside the school could be liable simply for criticizing the process like Barnett did.Report

Anon
Anon
6 years ago

Justin, I wonder why you put in bold the part of the report criticizing the use of alternative hypotheses. One hypothesis would be that you thought, as I did, that the remark was so absurd as to be laughable. If investigators never need to consider alternate explanations of evidence, then doing an investigation must be pretty easy: come up with one hypothesis and you’re done!

An alternative hypothesis would be that you agreed with the sentiment or for some other reason found the passage noteworthy. Oh, there I go! Entertaining alternative possibilities again!Report

Austin
Austin
6 years ago

“While creating alternative hypotheses may be useful in philosophical argument, its use and excessive elaboration in building supporting and refuting arguments in a sensitive sexual harassment context definitely showed extremely poor judgment.”

Here is how I interpret this sentence:
It seems that Barnett engaged in at least two different activities that could have been construed as retaliatory: (1) He conducted his own investigation on the matter after the ODH decided on the case (interviewing witnesses, having conversations with faculty members that were not present that evening, etc.). One could plausibly say that all this was done in an effort to discover the truth of what happened that night. Especially, if the point is to try to convince lawyers to take up the case on a contingency fee basis. (2) When the effort to convince a lawyer to take up the case on a contingency fee basis didn’t work out, Barnett crafted a letter directly to the Chancellor and President to convince them that the ODH report was flawed.

These two activities have two very different audiences and serve different roles. Entertaining hypothetical alternatives may be of use when one is trying to figure out what happened or when is trying to convince lawyers that there is more to the story that the ODH decision makes it seem. But these lawyers are not in any official position of authority over the complainant whereas the Chancellor and President of the University are in a position of great authority over the complainant. Presenting to lawyers some alternative counterfactual about how things could have gone that evening does not have the same punitive affect on the complainant as presenting the same hypothetical to the complainant’s bosses.Report

pen wing
pen wing
6 years ago

Here’s to hoping that some university will step up and offer him a distinguished visiting position for the coming year. Unlikely though.Report

Sigrid
Sigrid
6 years ago

Does anyone know what Benson’s range of options are, besides the two recommendations (termination vs. 1 year suspension)? For example, could he decide for a longer or shorter (or no) suspension, or, indeed, any other consequence that he deems appropriate? I get the impression that he is not constrained, but that the norm would be to decide for one or the other of the recommendations.Report

Zola
Zola
6 years ago

The report raises larger questions:
a) Why did David Fine’s report “deliberately avoid[] reevaluation of the merits of the ODH conclusion or their decisions to include or disregard various testimony”?
b) Given that Barnett did not commit retaliation under the legal definition (as the panel unanimously agreed), *why did the administration pay $825,000 to the complainant to settle a retaliation claim*?
It looks like there are misconduct issues involving people much higher up than David Barnett.Report

anonymous
anonymous
6 years ago

I am at a total loss for any one thinks intent is relevant in the way described. To understand why, consider this thought experiment: Suppose that a student filed a sexual assault complaint against a fellow student. Suppose that the recipient of that complaint were expelled from the university as a result. Suppose further that the complainant attempted to register for a class that required instructor approval, and the instructor was a mentor of that student who had been expelled. Imagine the instructor denies the complainant’s request to register for the course on the reasoning that if she allowed her to register, the recipient of that complaint would be hurt by her teaching and mentoring someone who filed a complaint against them. The intent in this case would not be to retaliate. It would be to consider the feelings of another person. But this is pretty clearly the kind of inappropriate denial of educational resources causally connected to engaging in the Title IX process that you are supposed to be protected from by law.Report

Gordon
Gordon
6 years ago

@Zola: The answer to (b) is presumably that the panel’s recommendation has no legal status from the point of view of a court proceeding. It could, and would, be introduced as evidence, but especially since its role within the university is apparently advisory, its presence wouldn’t stop the legal need to go through discovery – large numbers of interviews, for example – if the complainant pushed the case through. As I understand it, the vast majority of civil cases never go to trial: settlements become in the economic interest of everyone pretty quickly. They also eliminate the risk of an adverse finding, of course.Report

Anon'
Anon'
6 years ago

(1) Am I reading this right? Is the faculty panel claiming that “creating alternative hypotheses…[using] excessive details, arguments and alternative scenarios…[and] building supporting and refuting arguments” instantiates unprofessional conduct? I realize that the report also mentions the use of hearsay and sarcasm, but they list that as a separate instance of unprofessional conduct. If this is what they intend to indicate and the decision is upheld, then I can’t help but wonder if what is being identifying as “unprofessional” is precisely what philosophy students are trained to do.

If the complaint is something more like the faculty member’s approach lacked some kind of (social? workplace?) tact, and this lack of tact is what instantiates unprofessional conduct, then that’s a different claim. One can be both tactful and intellectually rigorous, no? (If this is the claim, then this is interesting for another reason: we all know an intellectual, who, probably innocently, struggles with tact [e.g., the absent-minded professor paradigm], but are they guilty of “unprofessional conduct”?).

(2) I am struck by the following comparison: In the present case, CU administration moved to fire professor 1 who, in the end, might only be charged “unprofessional conduct.” Now the administration might settle for one year without pay. Curiously, back in 2013, CU administration sanctioned another professor, professor 2, less severely, but for more severe charges: both sexual harassment and unprofessional conduct. I.E., the CU administration didn’t publicly move to fire this professor; rather, they gave professor 2 a semester without pay. This comparison does not support the CU administration’s repeated claim that they have always taken harassment seriously. If CU administration is serious about harassment, then it seems that this seriousness started more recently than professor 2’s sanctions. It seems to have started around the time of some events related Title IX compliance, the release of a document about CU’s philosophy department, and the publication of multiple settlements related to harassment. But I should probably stop here before I entertain an alternative hypothesis or try to refute an argument — after all, that would be unbecoming.Report

Oh, philosophers
Oh, philosophers
6 years ago

Faculty panel: “While creating alternative hypotheses may be useful in philosophical argument, its *use and excessive elaboration* in building supporting and refuting arguments *in a sensitive sexual harassment context* definitely showed extremely poor judgment.”

Anon: “If investigators *never* need to consider *alternate explanations* of evidence, then doing an investigation must be pretty easy: come up with one hypothesis and you’re done!”

That this garnered 14 up-votes (thus far), despite a complete and obvious disconnection between what the panel wrote and what anon complained about, is more than a little worrisome.Report

Swift
Swift
6 years ago

It seems clear to me that the panel did not find Barnett guilty of unprofessional conduct for entertaining alternative hypotheses as such. Rather, it was the specific alternative hypotheses he put forward that were deemed unprofessional. In the context, it seems highly likely that they were deemed so because they constituted some form of victim blaming. Perhaps this doesn’t come through as transparently in a cursory reading of the report as it might because the incriminating details of the alternative narrative were omitted to protect the victim from further harm.

Also an important point that seems to have been left out of the discussion above is that including intent in the definition of retaliation is a matter of interpretation. It is explicitly included in Title IX’s definition of retaliation but left out of CU’s policy (which is the controlling standard in this decision). The faculty panel disagreed with the independent investigator on whether or not the CU policy required demonstrating intent. The case they give for their interpretation seemed pretty thin to me, but I have not read the CU policy.Report

Oh, philosophers
Oh, philosophers
6 years ago

“Am I reading this right?”
– I don’t think so.

“Is the faculty panel claiming that “creating alternative hypotheses…[using] excessive details, arguments and alternative scenarios…[and] building supporting and refuting arguments” instantiates unprofessional conduct?”
– They don’t seem to be. They seem to be saying that the particular use and distribution of excessively detailed alternative scenarios amounted to unprofessional conduct in this case. The difference is significant. Philosophy students may be trained to consider counterexamples and alternatives, but it would not be an innocent exercise of philosophical training for one colleague to react to a mark on the furniture by spinning out and widely circulating a long, highly detailed, and denigrating account of how another colleague could have put it there. Lack of professionalism, especially the sort that does not quite amount to formal attacks or abusiveness, can consist in how things were said and done. A faculty panel empowered to consider the detailed evidence is probably well-positioned to assess this. Whereas the philosophical fixation with turning a local context-sensitive justification into a universal, nuance-free and context-insensitive principle is unlikely to illuminate it.

“we all know an intellectual, who, probably innocently, struggles with tact [e.g., the absent-minded professor paradigm], but are they guilty of “unprofessional conduct”?”
– Sometimes they are, no doubt. Why wouldn’t they be? Because their hearts are pure? But describing these cases simply in terms of a “lack of tact” is already to minimize the problem. Describe them, with equal prima facie justification, as a lack of collegiality and it ought to seem less surprising. To struggle with collegial behavior, innocently or not, practically is to struggle with professionalism.Report

Anon'
Anon'
6 years ago

Oh, Philosophers: (1) Ok, now I see how I could read these statements differently. And I definitely concede your points about the faculty panel being in a better epistemic position than myself and my “absent-minded professor” case being under-described. Thank you for replying. And since I see things differently now, I feel that I should apologize for my sarcastic tone at the end of (2).

Thanks again!Report

David Wallace
David Wallace
6 years ago

Anonymous at comment 10 says “I am at a total loss for any one thinks intent is relevant in the way described.”

I think the simple answer is “because apparently that’s how Title IX defines retaliation”. There’s a fairly extensive discussion of this on pages 5-6 of the report.Report

anonymous
anonymous
6 years ago

David, my question was in fact about both the comments here and about those pages of the report. Where is the citation to actual Title IX precedent and policies? It’s not in the report.Report

Carnap
Carnap
6 years ago

Anonymous,

On the legal question:
From the the Justice Department’s “Title IX Legal Manual:”
http://www.justice.gov/crt/about/cor/coord/ixlegal.php#3.%C2%A0%20Retaliation

“Once a prima facie case of retaliation is established, the investigating agency must then determine whether the recipient can articulate a legitimate, nondiscriminatory reason for the adverse action. If the recipient can offer such a reason, the investigating agency must then show that the recipient’s proffered reason is pretextual and that the recipient’s actual reason was retaliation. A showing of pretext may be sufficient to support an inference of retaliation if the fact finder concludes that retaliation was the real purpose of the action.”

On the non-legal question: Your thought experiment (above @10) is quite interesting. I find myself thinking that the act you imagine (performed for the reason you stipulate) might be objectionable but it isn’t retaliation.Report

Richard Hanley
Richard Hanley
6 years ago

Is anyone else troubled by this part of the report? (p13):
“(2c) Did Professor Barnett’s conversation with Professor Mitzi Lee fall below minimal standards of professional integrity?

We find that the University showed by clear and convincing evidence that Professor Barnett engaged in conduct that falls below the minimal standards of professional integrity by engaging in second hand hearsay with Professor Mitzi Lee that disparaged the Complainant.

According to Professor Mitzi Lee’s testimony, Professor Barnett revealed confidential details from the ODH investigation and his own enquiries that were disparaging to the Complainant. Professor Barnett testified he didn’t say the disparaging comments Mitzi Lee reported.

The conflicting testimony of Professor Mitzi Lee and Professor Barnett creates a “he said she said” situation where is it [sic.] possible that neither Professor Barnet [sic.] nor Professor Mitzi Lee remember exactly the conversation and the truth lies somewhere between the two statements.

Nevertheless, the panel found Professor Mitzi Lee’s testimony credible and that the disparaging comments about Complainant apparently made by Professor Barnett fall below minimal standards of professional integrity.”

How does this satisfy the alleged standard of “clear and convincing” evidence?Report

Swift
Swift
6 years ago

Given accounts of the Lee/Barnett conversation elsewhere in the report, we know that Barnett did not outright deny discussing the events of the party with Lee. He merely denied having portrayed her as “asking for it.” So it’s possible, given the language of the report, to interpret them as concluding that the report of second hand witness testimony, which Barnett admitted to very likely having made, was itself unprofessional. If that were the case, then the underlying facts would not have been in dispute. Further, they claim that despite the conflicting testimony, they found Lee’s testimony credible. The testimony of a credible witness is often accepted by courts as sufficient for proof beyond a reasonable doubt. So I don’t know why it should be particularly alarming that it was accepted as meeting the necessary burden here.Report

Richard Hanley
Richard Hanley
6 years ago

@Swift: thank you for attempting to answer my question. But your appeal to the rest of the report does not support your interpretation. The panel distinguishes between Barnett’s second hand hearsay *in general* from “second hand hearsay… that disparaged the Complainant.” Barnett admitted (as “very likely”) to the first but denied the second. Section (2c) specifically finds him guilty of the second, but the panel makes it clear that (p8):
“Other than testimony by Professor Mitzi Lee about one private conversation where it is alleged that disparaging comments were made by Professor Barnett about the Complainant, there was no testimony or other evidence provided to support the claim that Professor Barnett made disparaging comments about the Complainant to other faculty or students.”
So the report as a whole asserts that the “clear and convincing” evidence of disparaging comments is entirely the testimony of Professor Mitzi Lee.
Which brings me to your observation about the testimony of credible witnesses, which I agree with (and further note that the standard of “beyond reasonable doubt” is even higher than “clear and convincing”). But that is not what troubles me. The panel explicitly notes that the case is a matter of “he said/she said” conflicting testimony, with its attendant difficulties. They then tell us, “Nevertheless, the panel found Professor Mitzi Lee’s testimony credible.” In my judgment, without some explanation for *why* they found her testimony credible–and by implication, Barnett’s not credible–this at most reaches the weaker standard of “preponderance” of the evidence.Report

Swift
Swift
6 years ago

I found the use of ‘disparaging comments’ and ‘second hand hearsay’ sloppy enough that there was room for my original interpretation, but I admit yours is at least as plausible. However, it seems like the only explanation of the evidence surrounding that conversation that absolves Professor Barnett of unprofessional conduct is that Professor Lee maliciously made false claims about it. I find it highly plausible, if in fact she did not fabricate the statements she attributed to him, that her testimony constituted clear and convincing evidence of that fact. Further, that finding was only one of three that held him guilty of unprofessional conduct. Even assuming that they applied the wrong standard in that one finding, they clearly did not in the others (since those findings merely interpreted certain actions in the established record as unprofessional). So even if it did not meet the burden of proof, it’s not clear that the ultimate recommendation would have changed.Report

Zola
Zola
6 years ago

Here is a hypothetical scenario and a question about it.

Suppose that there was a case involving misconduct in the university, but it had nothing to do with sex. Professor Tenrab suspected that a university agency was involved in embezzling funds from the university. He spoke to several people, and what they told him confirmed his suspicions. He wrote a long document explaining why he thought funds had been embezzled, including detailed descriptions of what the witnesses told him. He sent it, confidentially, to the Chancellor and the President.

Then the Chancellor hired a private attorney to investigate *Professor Tenrab*, but not to investigate whether funds had actually been embezzled. Later, the Chancellor announced that Tenrab was to be fired.

After the P&T Committee hearing – which also never considered the question of whether funds were actually being embezzled – the Committee issued a report saying that Tenrab should be suspended, rather than fired, because Tenrab had engaged in behavior falling “below minimal standards of professional integrity.” Suppose that the reasons for this included such claims as that Tenrab disparaged one of the people involved in the embezzling scheme; that Tenrab gave excessive details in his report on the plot; and that some of the things Tenrab said were hearsay.

Now, my question. If something like that happened, would we all now be focused on discussing whether there was really enough evidence to conclude that Professor Tenrab disparaged one of the embezzlers, and if so what the appropriate punishment for that should be? Or would we perhaps be more interested in such questions as whether funds were being embezzled, why the Chancellor didn’t want the embezzling investigated, and why the Chancellor wanted Tenrab fired?Report

Sigrid
Sigrid
6 years ago

@Zola: speaking for myself, my main discomfort with Barnett’s approach was not dependent on the fact that the case was alleged sexual misconduct. What bothered me was that Barnett potentially poisoned the academic pool for a student in his own department. May I change your hypothetical scenario to illustrate? Suppose a philosophy graduate student had been given a job of managing the funds for some department function, became suspected and accused of embezzlement and then exonerated. At the time the case was settled, only a few people within the department knew of suspicion: the accused student, the chair, and two others who had worked with her and been interviewed for the case. But, Barnett becomes aware of the case somehow, suspects it wasn’t investigated properly and begins an investigation. Because of that investigation and perhaps coincidental talk by others, soon most of the grad students and faculty know of the case and know that some think the investigation came to the wrong conclusion. Now, that grad student is needing to function in a department where she might well wonder if all or most of the faculty she would like to work with consider her a thief.

So, I feel about this scenario the same as I do about the existing one. Namely, (1) given the original finding, it is completely inappropriate to put the student in that position within her graduate program, and (2) the flaws in the investigation do need to be investigated, but in a completely different manner than what Barnett did. If she is found to be an “embezzler”, deal with it then.

Anyway, that’s my take on it.Report

Zola
Zola
6 years ago

Sigrid, the misconduct that Barnett was alleging was not sexual assault. It was the misconduct of running a kangaroo court and convicting innocent people. With that in mind, the following seems to be a closer analogy:

Professor Tenrab notified the embezzlers’ supervisors of the embezzling scheme. The embezzling was never investigated by anyone, although the embezzlers themselves had investigated something else. The embezzlers had caused great harm, and would probably continue their activities unless something was done. There was no one to investigate the embezzlement, other than the supervisors whom Professor Tenrab notified.

However (taking on board your suggestion), one of the people involved in the embezzling scheme, maybe assisting the main embezzlers, was a student at the university, and due mostly to the indiscretion of others, some other professors became aware that this student might have been involved in the scheme, although most of them dismissed the possibility.

Does this change your reaction? Would you think that the most important issues are issues about whether Tenrab insulted the student? Or would you consider it more important to ask why the chancellor didn’t want the embezzling investigated?

Whistleblowing requires courage in any organization; whistleblowers are seldom welcomed by those in power. If, when someone attempts to expose official misconduct, every bit of their behavior is examined under a microscope for any bit of carelessness, any possible error that might have caused harm to anyone (including those involved in the misconduct), and if they are exposed to termination or other official discipline for anything that could be argued to have been a mistake — how many people do you think are going to be willing to blow the whistle on official misconduct? When the whistleblower winds up professionally ruined, while those whose misconduct he sought to expose go on completely unscathed, even unexamined, what message does that send? “If you have power, you can do whatever you want”? “If you see misconduct, keep your mouth shut”? Is this really what we want?

Of course, if you’re an embezzler, that’s exactly the message you want to send.Report

Zola
Zola
6 years ago

One added condition to the hypothetical. Suppose that when the P&T Committee looked into the case, they found that the rumors that had damaged the student’s reputation had been spread by no less than five professors (Professors Tenrab, Arggaj, Ausnap, Ele, and Delclan). However, the only one of those five who was actually brought up for discipline was Tenrab — the one who had criticized the administration and tried to stop the embezzlement. Would we find this troubling?Report