So yesterday I posted on Professor Buck Ryan and how he possibly, maybe, somehow could argue a right to due process exists. Not too long after publishing it I got an email with links to the response from the University of Kentucky asking if it changes my thoughts at all.
The short version: Not really.
The long version: Not really, because the University’s response only states there are additional allegations outside of the song, doesn’t elaborate on the nature of the complaints or the details of the investigation, and fails to identify the case it says supports its position.
The longer version: Not really because of all of the above, because the case the University references is a non-binding district court decision currently on appeal, and because I think, after having read the case the University referred to, that this is an arguably distinct situation which is covered by a specific University rule (which was recognized by the judge in that case) that may very well create a statutory entitlement to due process for Professor Ryan.
First, let’s acknowledge the University of Kentucky is understandably sensitive to charges of sexual misconduct against faculty, given its handling of the Harwood debacle. In fact, the University President has since proposed policies that would prevent the hiring of faculty who have previously had Title IX investigations “founded” against them. So that’s a big deal.
But the response of the University seems light on information. It states that there were complaints by two faculty members and two universities related to inappropriate touching and language, rather than The Beach Boys, that led to the punishment. It released a findings letter, but that raises questions based on the redaction, something necessary to protect the complainants and the party involved.
The problem is the redacted portion contains every piece of pertinent information other than the following: colleagues on the trip didn’t agree with Ryan’s behavior, Ryan has some sort of relationship (which is not sexual based on the findings) with a female who wore one of his shirts, Ryan did not believe his actions were inappropriate, and Ryan sang a goddamn song which the University believes was “of major concern and embarrassment.”
The song and the walk are the only two non-redacted pieces of substantive information. I get it, too. Identities need to be protected, especially those of students that may report inappropriate conduct or colleagues that may do the same. Otherwise, those people may be subject to retaliation.
Retaliation that could impact them professionally. One might say it’s necessary to protect them because otherwise their interest in their employment may be injured. Almost as if it could have an adverse effect on them and their employment.
Do you see what I’m getting at here?
Plus, it really bugs me the University states “a federal court recently ruled that no hearing was necessary to remove a department chair, which also involved allegations of misconduct.” Why? Well, because the University is referring to Crosby v. Capilouto, and Eastern District of Kentucky opinion that determined a Department Chair at the University of Kentucky failed to make out a due process claim because he was demoted, not fired. What the University fails to mention is:
- District Court opinions aren’t binding precedent in other cases;
- That case is currently on appeal to the Sixth Circuit, and is therefore doubly not binding;
- The interest here is the stripping of an award and affirmative sanctions, not the removal of a professor from an administrative position. Also, the determination could easily result in Ryan losing prospective employment.
Alright, let’s acknowledge we don’t know enough to say anything concrete. Now let’s throw that acknowledgment out the window and barrel forward recklessly.
Why don’t I agree with the University?
The state of law in the Sixth Circuit is interesting. First, there’s an indication that a tenured professor is only secure in their tenure and not in any other administrative position they may hold. That’s where the protected interest is, as was indicated in the Crosby holding by Judge Hood. When a faculty member acts in an administrative capacity, Judge Hood stated as follows:
The Sixth Circuit has held “that tenured university professors [do] not have a constitutionally protected property interest in administrative posts.” Stringfield v. Graham, 212 F. App’x 530, 538 (6th Cir. 2007). In Stringfield, the plaintiff (Yvonne Stringfield, a tenured professor) alleged that the individually named defendant (“Graham”) “violated her clearly established procedural due process right to notice and an opportunity to be heard before she was removed from her position as director of the baccalaureate nursing program, in which she says she had a property interest.” Id. at 536. Similar to the plaintiff in this case, Stringfield argued “that she held a property interest in the directorship through her status as a tenured faculty member.” Stringfield v. Graham, 212 F. App’x 530, 538 (6th Cir. 2007). The Sixth Circuit disagreed, but ultimately remanded the case for additional fact-finding because, unlike Dr. Crosby, Stringfield had an “ambiguously worded” “notice of appointment and agreement of employment” which intermingled her faculty position and her administrative directorship appointments. Id. The plaintiff in this case does not allege any such agreement, other than his very tenuous “de facto contract” argument addressed below. No discovery or further fact-finding is necessary in this case; reading the facts in the light most favorable to Plaintiff, it is clear there is no set of facts upon which he can rest his claims that he had a protected property interest in his administrative appointment to department chair.
Crosby is a pretty fun case. A tenured professor was appointed Department Head. Eventually, he came under fire for complaints that were supposedly sexually harassing. In the wake of the Harwood scandal, the University determined, without hearing, that these accusations were founded and stripped him of his department head functions, which were purely administrative. Afterwards they moved his office, but otherwise maintained him as a member of the faculty. Crosby filed a lawsuit, and it went before the United States District Court for the Eastern District of Kentucky, Judge Hood presiding. Hood determined, based on the above analysis, that there was no protected property interest in a tenured professor’s administrative positions.
My issues with this are two-fold. First, Professor Crosby has appealed this determination to the Sixth Circuit, and it is subject to appellate review now. Given that, I find Mr. Blanton’s statement that a “federal court” has ruled on this matter misleading at best. It implies the law is well-settled in regards to the sort of rights afforded to Professor Ryan, when in fact it is not. Additionally, it implies a misunderstanding of precedential value. District Court rulings are binding precedent only on that District Court, and only in the case they are made in. No District Judge is bound by their determinations in prior cases, nor are they bound to hold in the same manner as another judge in the same district. The Crosby order, until affirmed by the Sixth Circuit, is simply the law of the case for Crosby, and has nothing but an instructive impact on Ryan’s possible claims.
Second, despite what the University says, there are differences between Stringwell, Crosby, and the situation here. Stringwell is binding precedent in the Sixth Circuit, however it is a Tennessee case based on Tennessee law. As we covered last time, the statute or governing regulations control whether a property or liberty interest exists, pursuant to Roth and Goldberg v. Kelly. As such, Stringwell, read narrowly, stands for the precedent that a tenured faculty member in Tennessee has no protected property interest in an administrative position based on the statutes and regulations of Tennessee. In fact, the court in that matter remanded (sent back) the case because there was a chance the university had created such an interest via contract.
Crosby, which is not binding precedent, is another case where the question is not “what are the property interests of a tenured faculty member,” but rather, “what are the property interests of a tenured faculty member in an appointed administrative position.” It’s a minor distinction to some but, as I discussed yesterday in our long-winded talk about the breadth of the property interest, an important one. In Crosby, the court simply held that a tenured faculty member does not have a protected property interest in an administrative position absent a rule or regulation stating he does, but does have a protected property interest in their position as a tenured faculty member. This determination, unlike Stringwell, was based on a reading of the Kentucky Revised Statutes and the Governing Regulations of the University of Kentucky.
However, the interests that are affected here are not the loss of an administrative position, but rather a reprimand of Professor Ryan, the stripping of travel funds, and the stripping of an award. These do not arise from any administrative capacity accusations, but rather appear to arise solely from complaints based in Ryan’s alleged actions in his position as a tenured faculty member of the University.
It seems like a small distinction…but is it really? Let’s take a look at Crosby again:
The Court is similarly not persuaded that the University Senate Rules confer upon Plaintiff a protected property interest in his position as department chair. The University Senate Rules, Section VII, upon which Plaintiff partly bases his claims, is entitled, “Code of Faculty Responsibilities.” This section sets forth general responsibilities of faculty members, such as “[r]espect the rights of all campus members to pursue their academic and administrative activities.” [DE 9, Ver. Am. and Sub. Compl., ¶¶ 58-60, Ex. 1.] This section refers to faculty members, in their position as faculty members, and does not refer to a situation in which complaints may be brought against a faculty members in their capacity as administrative personnel.
Similarly, the court in Crosby goes on to note:
The Court recognizes some of the accusations against Plaintiff were vague and could have been interpreted as a complaint about Plaintiff in his capacity as a tenured faculty member; for example, the complaints that he is “Very condescending” and “Inconsistent.” The OIEEO’s letter clearly states, however, that it investigated and had findings related only to Plaintiff’s “behavior as Chair of the Department of Health Behavior.” The University Senate Rules Section VII do not apply to actions against a faculty member in his administrative capacity; in fact, they do not even mention it.
The court seems to be clearly differentiating between faculty and an administrative positions. Why? If you’re not familiar with how these things work, judges aren’t in the habit of spouting things if they don’t have some meaning. That’s where we get the axiom that even dicta (language in an opinion that is unnecessary for the final outcome) can be instructive (though not binding). Here, Judge Hood is discussing the claim of the plaintiff that a University Senate Rule entitled them to due process protections, then dismissing the same by stating that rule applies only to tenured faculty members in their capacity as such and not to tenured faculty members in an administrative capacity. Why would the court spend any time on explaining or discussing this difference if it didn’t matter?
It wouldn’t, and a review of University Senate Rule VII (7, for you non-latin speakers) makes it clear why. Rule VII, as Judge Hood points out, specifically concerns tenured faculty members acting in their capacity as tenured faculty members, a position that the University’s letter makes clear Ryan was acting in at the time of the complaints. There is none of the “saving” language found in Crosby, where the decision was clearly based on the professor’s administrative position. Instead, here Professor Ryan is being disciplined for actions taken apparently as a tenured faculty member and in that capacity.
This is important, because as stated in both Stringwell and Crosby, the level of protection due to a tenured faculty member is based on statute and the rules and regulations put into play by the University. Rules and Regulations like Senate Rule 7, which, under 7.2.1.E specifically covers the types of accusations made against Professor Ryan:
The individuals to whom this code is applicable are subject to the following specific responsibilities which can be enforced under this Code [. . .]
E. Respect the rights of all campus members to be given fair treatment and to be judged on a basis other than sex, race, ethnic origin, national origin, sexual orientation, color, creed, religion, age, or political belief. Sexual harassment is considered by the University of Kentucky to be one form of sexual discrimination. Unwelcome sexual advances, requests for sexual favors, or other verbal or physical actions of a sexual nature constitute sexual harassment when submission to such conduct is:
- is made explicitly or implicitly a term or condition of an individual’s employment, promotion, or academic standing;
- is a basis for employment, promotion, or academic decisions;
- substantially interferes with an individual’s work or academic performance; or
- creates an intimidating, hostile, or offensive academic environment. [US: 4/11/83]
WHY DOES THIS MATTER? Because Rule 7.3.0, regarding enforcement, has this language:
. . . In the event that after the appropriate processing through these channels the dean is unable to mediate satisfactorily between the parties, or in the event that the dean is the complaining party and is unable to accomplish a satisfactory solution with the accused, he/she shall make a written report containing his/her recommendations and findings and forward it to the Provost through the University Senate Advisory Committee on Faculty Code (SACFC) with copies to the accused and the complainant. Upon receipt of the report from the dean, the SACFC shall set a date for a hearing which must be within thirty (30) days of receipt of the dean’s report. The SACFC shall then determine whether to hold closed or open hearing(s) after consultation with the parties in dispute. After the completion of the hearing(s), the SACFC shall forward its recommendations to the Provost with respect to (1) whether or not the accused has violated the Code, and, if so, (2) the type of sanction, if any, which should be imposed. The Provost shall make a final decision after review of the report of the SACFC. In any event, however, the accused shall have the normal right of appeal to the President and the Board of Trustees in accordance with established procedures.
Further, Rule 7.5.0 states as follows:
A. In all proceedings under this Code the accused individual has the right:
- to be heard in his or her own defense;
- to be informed in writing of the complaint with full particulars and to be given at least 20 days before any action is taken to answer the complaint. The requirement that the accused individual be informed in writing of the complaint at least 20 days before any action is taken refers to a hearing before the SACFC, not to any step in the mediation process; the SACFC has the responsibility for providing this information to the accused individual.
- to enjoy professional privileges while appealing or undergoing a hearing process. (This does not mean that a change of assignment cannot be made in accordance with the Governing Regulations.)
B. With regard to all proceedings of the SACFC, the accused individual has the right:
- to receive a copy of all rules and procedures governing the actions of the SACFC in sufficient time to familiarize himself or herself with them;
- to have counsel, and to question the witness(es) against the accused, to present evidence and/or witness(es) in his or her own behalf in all SACFC processes;
- to challenge the impartiality of anyone sitting on the SACFC and to have up to two of the members of the SACFC replaced;
- to remain silent when testimony might tend to be detrimental to himself/herself, such refusal not to be used by the SACFC in making its decision.
See, that’s why I don’t agree with the University’s statement on this one. Right there. First, I’m not a constitutional lawyer but I am a goddamn lawyer and I know how to read a legal opinion. I know the value of precedent, and I know how courts tend to construe it. I know a bit about due process and administrative law and I can say the following: A university doesn’t have to adopt these sorts of procedures for complaints, but once they do they have created a right for the people that get the benefit of them. That’s the holding of Roth, and that’s the holding of Goldberg, and those are cases from the Supreme Court of the United States that are binding fucking precedent.
Stringwell and Crosby are both cases of administrators who were also tenured faculty being removed from their positions, and could be narrowly read to apply only to those situations based on a reading of the applicable state laws and the regulations of the universities there. Let me be clear: that’s where any property interests Professor Ryan has will flow from, and in Crosby, which the University has publicly indicated supported its position that Professor Ryan was not entitled to due process, the court found that Rule 7 may be applicable to tenured faculty in faculty positions, but not to tenured faculty in administrative positions. If Rule 7 is applicable, however, and Professor Ryan’s actions were those of a tenured faculty member acting in that capacity and he was investigated and disciplined as such, these complaints fall firmly within the purview of Rule 7 and the procedures promulgated by the University of Kentucky could certainly grant him a right to due process prior to deprivation.
I’ve seen no indication that Professor Ryan’s actions that led to this complaint were the result of anything other than his role as a tenured faculty member, nor has the University stated that he was investigated in any other capacity. If he was, a read of Crosby and Stringwell, along with the University rules, would indicate that he does, in fact, have a right to be heard and multiple levels of due process, including a hearing with attorneys before the SACFC, prior to being sanctioned. Despite what the University says, it may very well have deprived Professor Ryan of a right to due process guaranteed for just this type of matter in its own regulations.
And, while I haven’t looked at the surrounding history or Shepardized my cases here, the University has presented nothing that negates the argument Professor Ryan may have been entitled to due process prior to being acted against.
Additionally, let me say: It is reprehensible that the University is trying to place the burden of this on Professor Ryan. The University spokesman stated as follows:
If Ryan will simply waive his own personal privacy rights, the university will be happy to release the entire investigative file as well as his repeated e-mails to university officials. The university would redact certain portions of the files that would compromise the privacy rights of students. But every record that Ryan claims should be in the open would be.
…Why on god’s green earth should he have to waive these rights? If the investigation is concluded, the file and investigations are matters of public record, or at least that’s the argument in the lawsuit the University is currently fighting in a very similar matter. Further, even in a “preponderance of the evidence” situation, the person making the accusation doesn’t get to say “prove us wrong” without presenting a case. This is a huge part of my issue with Title IX proceedings in general, but that’s another post for another day.
Again, though, I’m not taking sides…except I am. I think by this point I’m becoming more convinced Ryan should have been given a hearing within the University before action was taken. I could be wrong, I’m not a constitutional scholar. But the University’s response made me more, not less, sure of my wishy-washy position from yesterday…because now I’ve read a case from the very district the matter will be brought in, seen how it differs, and read a court’s discussion of when a specifically cited rule would apply to grant that right, and it appears to me Ryan’s situation matches that based on the information I have here.
Anyhow, I need to do real work, so I’ll end this massively long post on this: I think Ryan, if he chose to bring an action, could set precedent.