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

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!

“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.

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.

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.

(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.

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.

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!

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.

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?

@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.

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?

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.