{This letter is quoted at length in a 1998 adjudicatory decision by Peter Mercer. Complete letter published on the web in July 2003 by Kenneth Westhues, Professor of Sociology, University of Waterloo, as part of the Documentary History of the UW Ethics Committee, 1982-1998.)


2 April 1997

Professor James Downey
President, UW

Dear President Downey:

This is to request an administrative review of the final two sections of the Provost's memo of 11 March, in particular the one-month suspension without pay he has imposed on me. I also request a full, external, public, independent, impartial review of the actions taken against me in relation to Policy 33, Ethical Behaviour, over the past three years.

You may recall that the last time you and I met personally, on 22 July 1994, you emphasized the importance of sticking closely to procedures laid down in university policy for resolving administrative issues. You described ad hoc arrangements as "sailing into uncharted waters," with all the risk and danger this metaphor implies.

I have recalled your metaphor these past three weeks, while struggling to make sense of the Provost's memo in terms of policy and to respond to it in terms of policy. In this instance, the Provost has sailed into uncharted waters, grabbing power to which no policy entitles him and then wielding it to do me unwarranted harm. His accusations, procedures and penalty do not fit standard categories. A measured response from me involves first exposing the lawlessness of his incursion on my salary, then requesting corrective action by higher university authority, not just to save myself from unjust punishment but to strengthen on our campus a climate of reason, lawfulness, and respect for the classic principles of academic life. I offer my response under the following nine headings:
(1) The Provost's disposition of Ethics Report 96-1;
(2) The Provost's further actions in light of university policy;
(3) His first accusation, refusing to cooperate;
(4) His second accusation, circulating confidential documents identifying R;
(5) His third accusation, copyrighting and publishing a pamphlet;
(6) His comment about counselling;
(7) Basic outcome requested of the administrative review;
(8) Need for an inquiry;
(9) The handling of the present request.

Enclosed herewith are two cerlox-bound volumes of documentation from Ethics Proceeding 96-1, and my subsequent correspondence with the Provost. I will be glad to answer any questions you may have, in writing or in person. In the latter case, I will ask a colleague to accompany me, and propose that both you and I tape-record our meeting.

1. The Provost's disposition of Ethics Report 96-1.

I have understood the first two sections of the Provost's memo in the same way he himself describes, as fulfilling, belatedly, his responsibilities under Policy 33, Section IV.D.5.b.:

The Vice-President, Academic, & Provost is responsible for determining whether he/she accepts the recommendation, implementing that recommendation if the determination is positive, and informing the parties, in writing, within a week of the action taken.

In section one of the memo, the Provost summarizes Ethics Report 96-1. In section two, he rejects it. He says it presents no compelling argument that I violated Policy 33. He says the statements I allegedly made fall within the bounds of acceptable classroom discussion. In the end he reports his decision not to implement the report's recommendations.

Since I agree with the Provost's decision to reject Ethics Report 96-1, I have no need to avail myself of the provision for appeal to the University President in Section IV.D.6.

2. The Provost's further actions in light of university policy.

The two further sections of the memo fall outside the Provost's responsibilities under Section IV.D.5.b of Policy 33. These sections concern what he describes as "matters arising from the ethics complaint and subsequent events." On the basis of three accusations altogether separate from those the student brought to the Ethics Committee in April 1996, the Provost then reports his decision to suspend me for one month without pay.

The Provost does not cite any basis in policy for his action against me. In holding out the possibility of appeal to the President within three weeks, he appears to see his action as falling within his authority under Section IV.D.5.b of Policy 33, but such a view cannot be sustained. That section of the policy has to do only with the report of an ethics hearing committee on some specific complaint, not with other or subsequent complaints.

This reading of the policy is obvious, and you appear already to have agreed with it. In the course of defending, in your letter to Professor Vanderkooy, the Provost's right to punish people, you make no reference to Section IV.D.5.b of Policy 33. Instead you cite the Provost's general responsibility "for overseeing and upholding policies" (Policy 48) and you paraphrase Section III of Policy 33, about the responsibility of all administrators who observe ethics violations "to take appropriate remedial or disciplinary action."

But Policy 48 speaks of upholding policies, and your reference to Policy 33, Section III, is incomplete. The full sentence is as follows, with the part you left out italicized:

While this Policy is designed especially for those who believe themselves injured (by violation of the Policy) and who seek redress, it is assumed that those with academic or employment supervisory authority who detect what they believe to be violations of this Policy will act promptly to provide or initiate the appropriate remedial or disciplinary measures as set out in this and other University policies and procedures (including Policies 11, 18, 36, 53, 63, and the Academic Regulations & Student Discipline policy approved by Senate).

As the full quotation makes clear, the responsibility to impose discipline given to administrators by university policy admits of some discretion, but is not at all a license to sail into uncharted waters and impose discipline at will. No policy allows the Provost to reach across multiple layers of the administrative hierarchy, single out some professor as deserving of punishment, and then zap that professor with an arbitrary penalty.

The irregularity of the Provost's memo is the more extreme, given that he ignored my letters to him of 19 December 1996 and 29 January 1997, thereby refusing opportunities to inform me of his concerns and rebuffing my respectful attempts at dialogue. Instead, after months of silence, he sprang on me without warning the news that I was already convicted and sentenced on charges I did not yet know were laid. Such action defies the most elementary principles of fairness and natural justice.

The extremity of the Provost's departure in this instance from university policy, and from the principles of academic freedom and collegial decision-making underlying it, can be seen in a comparison. On one side are the detailed procedures in Policy 11 on Faculty Salaries about how large a merit increment a professor should receive in the annual performance review—a matter that typically involves less than one percent of the professor's annual salary and no accusations of wrongdoing. On the other side is the Provost's solitary decision to take away more than eight percent of my salary this year, because he has decided on his own that I deserve punishment. If his intended discipline were sustained, a precedent would be established that the Provost could on a whim suspend a professor without pay. A single administrator would hold despotic power over a professor's working life.

3. The first accusation, refusing to cooperate.

The Provost's action against me is indefensible not only because it is arbitrary but because no evidence of wrongdoing on my part supports any of his three accusations. His first claim is that I "refused to cooperate with the Hearing Committee duly constituted under UW Policy 33 to hear R's complaint."

Refusal to cooperate is an elastic charge. It is not a sufficient basis for punishment. The Provost himself refused to cooperate with the committee: he did nothing with its report for six months past the policy deadline and then rejected its finding and recommendations.

In fact I gave Professor Lennox more cooperation than the policy requires. Section IV.C requires committee members to "make every reasonable effort to resolve the matter informally," but it allows both complainant and respondent to refuse such efforts, and the complainant in this case did so. I, on the other hand, repeatedly assured Professor Lennox of my readiness to cooperate in efforts to resolve the matter informally. This is clear in all nine of my memos to him—dated 25 April, 10 May, 16 May, 21 May, 3 June, 19 June, 28 June, 5 July, and 18 July.

In accusing me of refusing to cooperate, the Provost may have in mind what Professor Lennox described as my waiving my right to be present at the formal hearing. But no reasonable person would say the Provost can fairly punish me for waiving my right to be present at a proceeding whose premise, finding and recommendations the Provost himself has rejected. Had I acquiesced in the formal hearing, in the absence of a charge of misconduct I could answer to, I would have been joining in a burlesque.

The committee's failure to make any effort toward informal resolution, and its refusal of my efforts toward that end, go to the heart of what a university is about. All our policies that have to do with disputes give priority to informal resolution through discussion, dialogue, mediation and conciliation. A formal, adversarial proceeding is provided for only when there are serious charges, and even then only as a last resort. Policy 70 on Student Grievances makes the point most eloquently in Section I:

The process of education involves communication, inquiry, and the free exchange of ideas. Students are encouraged to communicate with instructors, professors and staff members whenever questions exist about decisions affecting them, especially when such decisions are seen to be unfair. An act or situation perceived by a student to be unfair becomes a "grievance" when a deviation from university policy or established practice affects them, or in the absence of policy or established practice when their scholarly activities or safety are adversely affected, and in either case only when informal communication with the instructors, professors or staff members directly involved does not resolve the issue.

I am proud to have maintained throughout the summer of 1996 a respectful, cooperative stance toward addressing the student's concerns in accordance with Policy 33.

4. The second accusation, circulating confidential documents identifying R.

The Provost's statement that I "circulated confidential documents identifying R" is factually incorrect. The word circulate connotes broad or public distribution, as in improving a newspaper's circulation, finding a circular in the mailbox, or circulating a petition. I am not sure whether it would have been a punishable offense for me to do what the Provost accuses me of doing, but in fact I did not do it.

As indicated on my memo of 22 April 1996 to Emily Barnes, I provided copies of documents that included the complainant's name to two people: my academic colleague/advisor from the FAUW AF&T Committee (Professor Roman Dubinski) and my legal counsel at CAUT (Kevin Banks). My right to consult as I did (and with Professor Len Guelke, who replaced Professor Dubinski after the latter's retirement on 1 July 1996) has never been in dispute. Professor Lennox affirmed it in his memo of 17 April 1996:

documents are not to be shared, or matters discussed outside the meeting room—before, during or after the hearing (obviously, this doesn't extend to one of the parties and her/his support person discussing the case between them; also, it does not preclude consulting legal counsel for advice).

Whether Professor Dubinski should have removed the complainant's name from documents before submitting them for discussion in the AF&T Committee is a separate question that needs no answer here. An accusation against one professor is not a legitimate basis for penalizing a different professor. An accusation against a committee does not justify punishing someone who neither belonged to that committee nor attended its meetings.

5. The third accusation: copyrighting and publishing a pamphlet.

This accusation falls altogether outside ethics proceeding 96-1. The booklet the Provost intends to punish me for publishing makes no mention of the proceeding or report. No reader of the booklet would know this ethics case ever took place. Plainly, the booklet is not an entry into debate about this or any particular dispute, but a work of scholarship aimed at understanding and preventing certain kinds of dispute in general.

In the course of describing in this booklet two examples of personal injury from my own courses, I quoted anonymously from notes given to me by students, one of them the same student who later complained to the Ethics Committee. Such anonymous quotation is standard practice in social research, part of drawing general lessons from particular events and of increasing our knowledge of social life. The issue of confidentiality does not arise. Authors of the quotes are not identified. The point is what was said, not who said it. In the case at hand I left out all conceivably identifying information: not just names but gender, physical description, year of study, major, also the names of the courses and when and where they were given.

The Provost claims that my efforts to conceal her identity in the booklet were not successful, that another student recognized her in the example. I do not believe this is true. The care I took to protect students' identities in the booklet went beyond the usual standard. The hand-marked pages of the booklet the Provost has given me show only that the student recognized herself, not that anyone else did. Before responding further, I would need to hear or read statements from the two students involved, the one allegedly identified from the booklet and the one making the identification.

If others have connected this student's identity to her accusations, the explanation may be that she herself informed others of her accusations. The hearing committee may have encouraged a guessing game by (as the Provost has now informed me) repeating her accusations to half the students in the course and then having telephone conversations with eight of them. For my part, I was careful to conceal all the students' identities in the booklet, I have not divulged their names to any other students, and I do not intend to.

6. The comment about counselling.

The Provost concludes his memo by expressing his view that I could benefit from an unspecified kind of professional counselling, and his hope that I will seek it. For my part, I believe that gratuitous innuendo about a professor's mental or emotional health diminishes all concerned, and lowers the calibre of our discussions and disputes. I'm sure that like me, the Provost reads, reflects, consults, and occasionally takes a break, for the sake of maintaining competence and balance in his personal and professional life.

7. Basic outcome requested of the administrative review.

Because the suspension without pay the Provost has decided to impose on me has no basis in his authority under Policy 33 or any other policy, and because the three accusations by which he justifies this punishment are not supported by evidence of wrongdoing on my part, the appropriate outcome of an administrative review can only be the overturning of his decision to impose the suspension.

8. Need for an inquiry.

The overturning of the suspension would not constitute a sufficient remedy even if ethics proceeding 96-1 and its aftermath were an isolated instance of overzealous administration of Policy 33. The proceeding kept me from my scholarly work throughout the spring term of 1996. By informing my students about its investigation and questioning them, the Lennox committee has raised unfounded doubts among them about the ethical acceptability not just of my teaching but of free discussion of social issues in the university classroom. These doubts need to be relieved. The committee's report obliged me to obtain private legal counsel, which has entailed financial cost.

But ethics proceeding 96-1 did not take place in isolation. It was an extension of ethics proceeding 94-3. Following are the more obvious continuities between the two ethics proceedings;

No reasonable person could study these continuities, especially against the background of other unusual restrictions and punishments imposed on me during this period, and see nothing more than routine administration of university policies. On the contrary, any reasonable person would suspect that the ethics policy in this case may have been ferried into waters beyond the map of policy and used for the unauthorized purpose of harassing a professor whose teaching threatens certain established interests.

The university owes it to itself to try to get to the bottom of these proceedings: to hold a full, public, external, independent, impartial inquiry into the official actions taken against me in relation to Policy 33. So that the inquiry may be a learning experience of benefit to all, it should be sponsored jointly by the university and CAUT, conducted by scholars of some stature, and guided by procedures and terms of reference clearly spelled out in advance. I would give such an inquiry my full cooperation.

Very many professors here and elsewhere would welcome such an inquiry, not just to remedy the breakdown of order in sociology but because of what that breakdown has implied for academic freedom, for needed revision to our ethics and faculty grievance policies, and above all for the question of how well we are achieving our public purposes in education and scholarship. You will have seen the letter from Professor Harriet Lyons in the UW Gazette of 12 March, wherein she rightly maintains that "we all, as a University community, would have much to learn from an inquiry as to why some of the policies designed to assure such an outcome [a fair and impartial hearing, leading to enforceable recommendations] did not work." She wrote her letter, I assume, without knowing the full extent to which our policies have failed to work, as reflected in the Provost's rejection of the report of ethics proceeding 96-1, combined with his imposition of punishment on the basis of matters subsequent to it.

9. The handling of the present request.

Regrettably, because I know how hard you tried not to be, you yourself have been drawn into the uncharted waters of these proceedings. Generally, you have placed the blame on me, first by allowing my grievance to go unheard, then by how you handled my request to Senate Executive, more explicitly by your letter to FAUW President Ian Macdonald on 20 February 1996, and most recently by your published commentary on the CAUT Report in the November 1996 CAUT Bulletin, and the accompanying statement of Professor Ron Lambert, with whose vituperations you have stated you are fully in accord.

This record raises the question of whether you can fairly conduct the administrative review the present letter requests, that is, whether you will be able to consider the present letter impartially, without bias or the apprehension of bias. This question has become more pointed since your response of 20 March 1997 to the letter of 19 March 1997 from Professor Vanderkooy, where you appear to have prejudged the matter I set before you now.

It is a hard question, better answered by you than me. If you refer this letter to an outsider, you may be accused of paddling in the uncharted water of ad hoc arrangements. If you handle the matter yourself, you may be accused of paddling in the uncharted water of personal bias and prejudice. How you proceed comes down in the end to your judgment, which I am sure will be informed by broad consultation, as to whether you are able to conduct the fair, impartial administrative review I am requesting here. Whatever you decide, I pledge my cooperation in providing such additional information and opinion as may be asked of me.

In conclusion, let me say that while I regard the matter I bring to you here as very grave, not just for me but for the university, I know that it is not unlike issues being faced in universities all across Canada. I have every confidence that with work and good will on all sides, and with attention to the public purposes we are paid to serve for our students and the Ontario taxpayers, this matter can be fairly and constructively resolved, and we may yet have the "reconciliation and a new beginning" you hoped for in your letter to me of 3 March.

Sincerely yours,

Kenneth Westhues

copies: Professor Jim Kalbfleisch, Vice-President, Academic, and Provost
Professor Len Guelke, FAUW AF&T Committee
Professor Roger Gannon, CAUT AF&T Committee