TWENTY FLAWS IN UW ETHICS HEARING COMMITTEE REPORT NO. 94-3
Kenneth Westhues, Professor of Sociology, University of Waterloo
(Offered for but refused publication on the UW administration's website, June 20, 1994; publication on the writer's homepage, December 2002; this document forms part of the Documentary History of the UW Ethics Committee, 1982-1998.)
On 9 May 1994, an Ethics Hearing Committee (Professor Sally Gunz as chair, Professor Don Brodie, Ms. Patti Haygarth), constituted under UW Policy 33, handed down its report on a dispute between Professor Adie Nelson and me. On 8 June 1994, Provost Jim Kalbfleisch made the report public (without consulting me), published it on UWInfo, and published in the Gazette an open letter accusing me of spreading misinformation and going back on my word.
I have responded to Provost Kalbfleisch in an open letter offered for publication in the Gazette of 22 June. In my judgment, his release of the report has undermined Policy 33 to its very core: after UW's second highest administrator has breached the confidentiality of this proceeding in so total a way, I think all members of the university will want to think very carefully before becoming involved with the Ethics Committee in any way.
Given that Report 94-3 is public, however, I feel obliged to make this public response, lest it be assumed that I find the report acceptable. My response is obviously coloured by the fact that the committee found me guilty of violating Policy 33, and made recommendations that led to events without precedent on the UW campus: not just the requirement that a professor publish in the Gazette a public apology approved by the provost, but the provost's dismissal of the apology and denunciation of the professor in the same issue. But I invite readers to inspect carefully the evidence presented in these pages. I will gladly provide additional evidence and clarification upon request. I hope Professor Nelson and members of the Ethics hearing committee will do the same, so that the university community may have information from all viewpoints by which to assess what the provost has made a very public dispute.
I believe that in this instance the Ethics Committee has behaved wrongly and prejudicially, allowing itself to be used as a weapon in a kind of mob action by my department chair and a dozen colleagues, aimed at punishing me, bringing me into disrepute, curtailing my work, and in general making it impossible for me to remain in my position here. I have described their collective action in a widely circulated letter of 15 March to Professor Gail Grant, of the University of Guelph, available on UWInfo. I will gladly provide a copy to anybody interested. I would also refer readers to a body of Swedish research directly relevant to the situation at hand, summarized in Heinz Leymann, "Mobbing and Psychological Terror at Workplaces," Violence and Victims 5 (1990), pp. 119-126.
While my criticism of the Ethics Committee is harsh, please note that it is limited to this one proceeding. The committee may well have acted wisely and constructively in other cases. I was acquainted with Professor Gunz earlier, through our work together on the editorial board of FAUW Forum. I think highly of her. Professor Nelson, too, has earned my respect as a talented, productive, hard-working sociologist. Indeed, I have high regard for every single one of the participants in the mob action against me. History is full of examples of good and decent people being caught up in fanatic movements that do a great deal of harm. As an undergraduate in a church college 30 years ago, I myself took part in a kind of witchhunt that caused great and undeserved pain to the professors who were villainized. My objections to the recent proceeding are organized under three headings: issues relating to jurisdiction; the wrongness of the findings; and recommendations attempting mind control.
Issues Relating to Jurisdiction
1. The committee violated its own policy, by dispensing with attempts at informal resolution of Professor Nelson's complaint. Section IV.C of Policy 33 explicitly states: "Whenever possible, Committee members shall make every reasonable effort to resolve the matter informally." In this case, committee members made no effort at all. I was never invited to any informal discussion toward resolving this matter. I suddenly received a letter informing me that Professor Nelson had filed a complaint, that a hearing committee had been struck, and that the matter would be resolved through a formal hearing. When I queried Professor Gunz near the start of the hearing about this violation of the policy, she replied that Professor Nelson had "waived her right" to informal resolution. In fact Professor Nelson had cut off communication with me on 16 December 1993, writing in a memo to the department chair that "I will receive no further communication, oral or written, from him and that any necessary communication between us on departmental matters, while I am in the department, must be conveyed through your office." In early January of 1994, Professor Nelson steadfastly refused to meet with me even in the presence of her colleague-advisor (Professor Harriet Lyons) and mine (Professor Roman Dubinski). I heard nothing more from her until receipt of her formal complaint three months later. Given the "remedial rather than punitive objective of the Policy" and the "informal, confidential one-on-one approach" (Appendix A.IV.3), and given the complainant's refusal even to attempt informal resolution, the Ethics Committee should not have proceeded to a formal hearing at all.
2. The committee lacked jurisdiction to hear a complaint filed for the explicit purpose of preempting a case before the Grievance Panel, under Policy 63. Professor Nelson brought her complaint to the Ethics Committee (Policy 33) five weeks after I had filed complaints against others with the Grievance Panel (Policy 63). She took this action just at the point when, given the failure of my attempts at informal resolution, the Policy 63 case was about to go to a formal hearing. Professor Nelson's stated objective in bringing her complaint was to persuade the Ethics Committee to dismiss the complaints I had lodged with the Grievance Panel. The Ethics Committee's claim to have jurisdiction to address "the ethical component" of my case under Policy 63, was a thinly veiled means of preempting the case.
3. The case that Professor Nelson brought to the committee, and that the committee agreed to hear, is not an offense under Policy 33. The complainant alleged that I was attacking her competence and character, an action that, whether true or not, is nowhere mentioned in Policy 33. Neither Professor Nelson, in her statement of complaint, nor Professor Gunz, in her statement of jurisdiction, cited any clause or principle in the policy that attacking a colleague's competence and character might violate. The best Professor Nelson and the committee could do, in response to my persistent questioning in this regard, was cite the sweeping general principles in Section I.A-C of Policy 33. In fact, as is clear from Appendices A and B, Policy 33 was written to deal mainly with cases of sexual and racial harassment, abuse, and prejudice. The committee had no jurisdiction to hear a complaint about conduct that the policy does not forbid, especially given that attacks on one another's character and competence are a routine part of academic life, apparent to some degree in every argument that takes place. If the Ethics Committee had jurisdiction to hear this case, its domain extends to every difference of opinion in the university. This is clearly not the intent of the Policy.
4. A document filed for a proceeding under Policy 63 is insufficient grounds for a complaint under Policy 33. As detailed in her six-page statement, the basis of Professor Nelson's complaint to the Ethics Committee was the statement I had filed with the grievance panel, wherein, she alleged, I attacked her competence and character. The Ethics Committee had no jurisdiction to hear a complaint brought on this basis, as if it were a gatekeeper for deciding which grievances are sufficiently "ethical" to be heard by the other panel. Policy 33 assigns the Ethics Committee no such role, and the committee appears to have become aware of this by the time it produced its report. Therein, it gives only brief attention to my grievance documents (middle para., p. 4), and ignores the 26 sections of those documents that Professor Nelson had highlighted as attacks on her competence and character, even though these documents were the explicit basis of Professor Nelson's complaint.
5. The committee denied me "a written statement of precisely which actions on my part the committee intends to assess as possible violations of the general and/or specific principles in Policy 33." I made this request repeatedly and in writing at the start of the hearing, arguing that I could hardly defend myself if I did not know what actions of mine were at issue. My request was summarily swept aside. What the committee in fact did was go looking for anything it could find in anything I had said or written to or about Professor Nelson, that could conceivably be construed as an attack on her competence and character. In the end, the committee settled for this purpose on my letter of 15 March to Professor Grant, which Professor Nelson did not even mention in her statement of complaint but introduced only at the hearing itself.
6. Professor Gunz was not qualified to sit on the hearing committee. I had given her name, among others on the Forum editorial board, to Professor Grant, as possible recipients of my 15 March letter. At the hearing, Professor Gunz admitted that she had received and read it. She was thus a witness to what the committee defined in its report as an offense under Policy 33, and she should have stepped down, in accordance with Section IV.D.3 of the policy: "Anyone on the hearing committee who is a party or witness to the complaint at hand is disqualified." Professor Gunz was a highly biased witness, too, as one of perhaps five or six recipients of my letter of 15 March who know Professor Nelson and could recognize her as the colleague I called Jane Jones. The bulk of the remaining more than one hundred recipients are my friends and colleagues at other universities, who have no reason to know or care who Jane Jones really is. I did not ask at the hearing for Professor Gunz to step down, because Professor Nelson's statement of complaint made no mention of my 15 March letter, because I could not imagine that the committee would find it an offense, and because the committee refused my request at the start for a written statement of precisely which actions of mine were at issue.
7. The committee defined its jurisdiction at the start in a way that assumed my guilt. In her statement of complaint, Professor Nelson requested by way of remedy that the committee "order that Professor Westhues should cease his attacks upon my competence and character immediately..." Professor Gunz wrote back to her that the hearing committee had decided that "it would be within the mandate of the committee to recommend (to the Provost) a cessation of statements on this issue." Built into Professor Nelson's request, and into Professor Gunz's assertion of jurisdiction over it, was the assumption that I was indeed attacking Professor Nelson's competence and character. I objected in writing to this prejudicial definition of the case, but to no avail.
The Wrongness of the Findings
8. The keystone of the committee's main finding, and the basis for its requirement of the public apology, was factually wrong. The committee argues in its report (bottom, p. 4) that Professor Nelson was easily identifiable in my letter of 15 March to Professor Grant, despite my having identified her therein only as Jane Jones, because I described her as a young, untenured, feminist woman whose appointment I had supported in 1990. The committee claims that Professor Nelson "is the only untenured female faculty member appointed to the Department of Sociology in 1990." But this is untrue. I got the date wrong. The only untenured female faculty member appointed to the department in 1990 was Professor Jean Mackenzie Leiper, who left in 1991. Professor Nelson was one of two untenured female faculty members appointed to the department in 1991, the other being Professor Alicja Muszynski.
9. The committee ignored clear evidence that my letter of 15 March was not intended to damage Professor Nelson's reputation, and did not have that effect. I went to great lengths in that letter to defend Professor Nelson's and my other colleagues' reputations. I did not give their names. I referred to their mob action against me as "a lapse of right conduct and good judgment." I wrote at the start: "I do not claim moral superiority to my chair and colleagues, and I certainly do not want anything in this letter to be taken as a slur on anyone." I wrote near the end: "I want to emphasize that all my colleagues are respectable scholars. I have worked constructively with each of them in the past, and look forward to doing so again." I also showed empathy toward Professor Nelson: "I was led to conclude that it had been unfair not only to the student but to Jones that she, an inexperienced, untenured Assistant Professor, had been appointed to chair the exam."
The best evidence of the effect of my letter on Professor Nelson's reputation is the letters readers of that letter themselves wrote to President Downey. About 50 of them sent copies of their letters to me. Only a tiny percentage even mentioned Jane Jones, and none of them with an attitude of contempt for her. The committee could have asked President Downey for this information. It did not do so.
In fact, the overwhelming majority of those who received my letter of 15 March are distant from the University of Waterloo, have never heard of Professor Nelson, and have no reason to want to find out who the Janes Jones of my letter really is. It was to protect her and my other colleagues' good names from the unflattering truth of their behaviour in this instance, that I was careful not to name them. Professor Nelson's name became public on the UW campus only when Professor Lambert released the information to the Gazette.
10. In cases of legitimate differences of viewpoint between Professor Nelson and me, the committee accepted Professor Nelson's viewpoint as fact, and dismissed mine as incorrect. The clearest example is the 12 November telelphone call, which I described as Professor Nelson phoning me, but which she described as her returning my call. Both viewpoints are correct. I had indeed telephoned her earlier in the day, but there had been no answer, I had left no message, and was unaware that she knew I had telephoned. Her telephone equipment recorded my number, however, she recognized it, and therefore understood herself to be returning my call. Here is how the committee report describes what happened: "The Committee heard that, while the Complainant [Professor Nelson] had phoned the Respondent [me], she was, in fact, returning his call."
11. The committee found statements of mine reprehensible if they might be understood to reflect badly on Professor Nelson, regardless of the evidence in support of them. Here are three examples from page 5 of the committee's report.
In my letter of 15 March, I asserted "that Jones had not in fact chaired the committee, but had followed the lead of the senior member in formulating at the end the criteria by which the student was deemed to have failed." Having admitted earlier both orally and in writing that this is essentially what happened, Professor Nelson introduced into the hearing new and compelling evidence in support of my assertion: a photocopy of the list of criteria Professor Jim Heap (the senior committee member) formulated sometime during the examination, for judging the student. Professor Gunz misunderstood at first, thinking the handwriting was Professor Nelson's. The latter corrected her, explaining that the handwriting was Professor Heap's. In its report, the committee ignores Professor Nelson's dramatic corroboration of my assertion, and chastises me for writing a sentence that fits the facts.
The committee's report finds it "particularly damaging" that I wrote: "Professor Jones took much greater offense from our conversations of 11 and 12 November than I realized. She apparently informed the department chair of this, he asked her to give him a detailed written report, and she obliged on 24 November with a 10-page document." By all the evidence available, including Professor Nelson's oral testimony at the hearing, this is precisely what happened. The committee makes it a sin to tell the truth.
The report also faults my assertion that neither Professor Lambert nor Professor Nelson gave me a copy of the report, but instead, as I learned later, shared the report with colleagues in the department. Professor Lambert's oral testimony at the hearing confirmed what he wrote to me on 10 December, that he had passed the report to Professors Curtis, Fasick, Warriner and Wipper. In her own oral testimony, Professor Nelson said she consulted with Professor Curtis in writing the letter. The evidence of the hearing thus supported my assertion. In addition, the seven colleagues who signed the collective memo of 5 January declared in the first sentence: "Professor A. Nelson has passed on her memorandum to you of 24 November, Professor K. Westhues' communication to her of 13 December, and her letter to you of 16 December." At the hearing, Professor Gunz termed this sentence "totally ambiguous."
12. The committee's report denies a fundamental form of academic freedom, namely a professor's freedom to question the judgment of colleagues. The committee report (p. 5) faults me for writing: "My personal judgment is that I would sooner defend the student than the examiners." That is my personal judgment. I have every right to make it.
Similarly, the committee says I had a right to be upset or angry on hearing the news of the exam, but "no right to engage in a personal attack upon the Complainant's academic and administrative competence." In so far as my attack came across as personal, the committee is correct, and for this I have been apologizing over and over since six months ago. But my attack upon Professor Nelson's academic and administrative competence as chair of the examining committee was altogether within my rights as the student's supervisor. I was and am obliged to make it, in view of the evidence she and the student gave me about how the exam was conducted.
A third example of the restriction the committee seeks to impose on academic freedom is the fault it finds with this sentence: "To me, the report came across as the work of a frightened junior professor caught in the cross-fire between me and the departmental authorities, now seeking the chair's protection against the legitimate questions the student and I had raised." By the evidence of the hearing, Professor Nelson admitted she was frightened. She was certainly a junior professor, and she was indeed caught in the cross-fire between Professors Lambert and Goyder on the one hand, me on the other. In her oral testimony at the hearing, Professor Nelson acknowledged not only that she produced her 10-page report at the chair's request, but that she was the unnamed source of the palgiarism charges Professor Lambert brought against the student. She claimed repeatedly that I should not have directed my questions at her but should have respected the "chain of command," that is, Professor Lambert. The sentence in question therefore represents a plausible interpretation of the evidence. By the phrase at the start, "to me," I indicated clearly that it was my interpretation.
13. The committee's report is self-contradictory. In the final paragraph of page 5, the report asserts that my letter of 13 November 1993 (actually 15 November) falls within the bounds of acceptable academic discourse. Yet the questions I raise in that letter about Professor Nelson's handling of the exam (whether she actually chaired it, whose criteria were used, whether the student knew the criteria beforehand) are almost identical, even down to the phrasing, with the questions in my letter of 15 March, which the committee judges are in violation of Policy 33.
14. The committee's report consistently treated my statements outside the context in which I made them. The committee utterly ignored the attacks Professor Nelson has made on my competence and character, in her memos to the chair of 24 November and 16 December 1993, and most recently in her statement of complaint to the committee. Following are some of the words Professor Nelson applied to me in the last-named document: intimidating, terribly insulting, intolerable, degrading, persistent assault, misconduct, denigration, repugnant, self-serving, offensive, preposterous, lugubrious, specious, cowering, fallacious, unprofessional, threatening, vexatious. The committee showed scant recognition that the much milder comments I have made about Professor Nelson are in response not only to the destruction of my supervisee's career by her committee, but to her own wildly overblown rhetoric toward me, which has had real and devastating consequences on my position at this university.
15. The committee makes it an offense for me to worry. On page 4, the report terms "gratuitous and offensive" what it calls "an allegation of sexual harassment" in my Statement of Grievances. There is no such allegation, as the report's quotation from that document makes clear. I wrote simply that I was worried about being falsely accused of sexual harassment, in the period after I had learned of a long, defamatory statement Professor Nelson had given Professor Lambert about me, but before either of them saw fit to give me a copy.
My worry was surely no more gratuitous or offensive than Professor Nelson's worry, reported to me in Professor Lambert's letter of 17 December, that she felt so physically intimidated by me that she declined to attend the department's Christmas party. The committee ignored Professor Nelson's worry, however, and identified mine as reprehensible: striking evidence of something less than impartiality.
Recommendations Attempting Mind Control
16. The committee's recommendation that I "be required to accept the findings of this committee" grievously abridges the freedom of thought and expression fundamental to academic life. In the universities of a free society, no tribunal nor any administrative officer has the authority to require any professor to give assent to any ideas. The Ethics Committee's attempt to coerce such consent in the present case is blasphemy against the very idea of a university. Requiring certain behaviours is sometimes necessary; requiring acceptance or agreement never is. It may be for this reason that Provost Kalbfleisch ignored this recommendation, and did not ask me for my written undertaking to accept the committee's findings.
17. The public apology the committee required of me had no purpose except public humiliation, since it was clear that neither the committee nor Professor Nelson would accept it anyway. For its part, the committee dismissed in its report my apology of 3 March as "reluctant at best." Any further apology I might make, in response to coercion by the committee, would be reluctant by definition, and therefore deserving of dismissal, too. As things turned out, the public apology the committee approved for publication in the Gazette, said almost the same thing as I had written to Professor Nelson on 3 March, and sure enough, it was immediately judged to be not good enough.
For her part, Professor Nelson was on record since 16 December as saying that she would not consider any further apology from me as meaningful. Of the 26 sections of my statement of grievances that Professor Nelson identified for the committee as violations of Policy 33, six were statements of apology. Here are two examples: “I continue to feel apologetic for having been intemperate in both the conversations with Nelson.” And: “I have acknowledged and apologized for crossing the line, in my conversations with Nelson, between desirable argument and reprehensible personal attack.” Given Professor Nelson's interpretation of sentences like these as policy violations, one could hardly expect her to be satisfied with any further apology I might make.
18. The requirement of a public apology was an unusual punishment without precedent at UW. In a telephone conversation on 20 May, Gazette editor Chris Redmond told me he was unaware of any professor being made to make a public statement of apology in the campus newspaper during the two decades of his editorship. What the committee required fell outside the boundaries of academic custom and had no ostensive purpose except to bring a professor into public discredit, for having challenged and sought an independent review of an examining committee's decision.
19. What the committee sought in the public apology was in fact a retraction of the questions I had raised of Professor Nelson's examining committee. The committee's recommendation did not make this explicit, but it regarded all my previous apologies for incivility as inadequate and insisted that I had "still not done the one thing that might resolve the dispute with the Complainant, namely apologize." Professor Nelson herself made clear at the hearing that my incivility was not the issue, that the only kind of apology she would accept was one that expressed regret for having questioned the decision of her committee. Here is the first of three quotations from her testimony: “He then, again, asked Harriet Lyons during this memorable meeting what he could do to show his sincerity. And again, I said to Harriet, ‘The only thing he could do is, again, stop casting doubt on the credibility of the examiners.’” A second formulation: “And so, again, I said to Harriet, I'm sure she'd testify to it, it's quite truthful, is there anything he could do in this stage of the process to suggest to you he is sincere about apologizing. I said, ‘Yes, drop the issue.’” A third formulation: “I responded, again, to me it would be a mark of your sincerity if you accepted that the tapes, that the examining committee had acted in an ethical manner as evidenced by your ceasing to demand the tapes, with the suggestion, again, that the tapes would contain some, again, untoward or unethical behaviour.”
When I decided to comply as best I could with the committee's recommendations, I submitted to Provost Kalbfleisch and to Professor Gunz on 24 May a draft of a statement of apology. The committee then offered me its own draft, removing from mine any indication that I did and do question the decision of Professor Nelson's committee, and making it seem that I regret having raised those questions. Only at my insistence did the public apology make an indirect acknowledgement of the legitimacy of questioning a colleague's judgment.
20. In requesting of me, in accordance with the committee's recommendation, a written undertaking to cease from making any further attacks, private or public, direct or indirect, upon Professor Nelson, Provost Kalbfleisch requested essentially a confession of my guilt. One cannot promise to cease doing something without admitting that one is already doing it. In asking my written undertaking to this effect, the committee and Provost Kalbfleisch sought to coerce a confession from me, and thereby struck at the very heart of the tradition and legislation on human rights, the very basis of civilized society.
Similarly, the prohibition of even private, indirect attacks on another represents an invasion of the right to privacy that is fundamental in a free society.
I suspect that Provost Kalbfleisch realized the Orwellian nature of this recommendation, since he was content with my written undertaking, given in my letter to him of 24 May, "to conduct my relations with Professor Adie Nelson in accordance with university policy and standard norms of civility and collegialty."