BY JOHN K. WILSON

Earlier this month, Dixie State University (DSU) in Utah announced the suspension and planned termination of music department chair Glenn Webb and director of vocal activities Ken Peterson. But the reasons for this extreme action are quite dubious, and the violations of academic freedom, due process, and DSU policies are alarming. DSU appears to be retaliating against these professors who have criticized the administration, including President Williams and Theatre Department Chair Mark Houser, and testified on behalf of fired professor Varlo Davenport in a lawsuit against the university.

According to a March 6 Dixie State University press release: “On March 2, two tenured faculty members’ employment at Dixie State University ended in accordance with DSU Policy 371.”

There are many problems with this statement, beginning with the fact that it is a lie. The two tenured professors have not been terminated yet. Instead, DSU gave them a “Notice of Termination” that begins, not ends, the process.

The difference between filing charges for termination and terminating a professor is equivalent to the difference between a prosecutor filing charges and a defendant being found guilty. The difference is known as the rule of law and due process.

By simply announcing that the two professors had been terminated and falsely calling the termination procedures an “appeal” process. the administration is deceiving the public and falsely smearing two professors who have not been found guilty of anything.(The March 6 statement also featured a false claim, since retracted, that replacement faculty for their classes had already been assigned.)

On March 29, Peterson filed his formal challenge to the Notice and requested a faculty hearing. In the meantime, Peterson and Webb have been suspended, which is itself a violation of academic standards and DSU policies.

According to Policy 371, 4.2.2, “Until the final decision upon termination of an appointment has been reached, a faculty member may be suspended temporarily, or assigned to other duties in lieu of suspension, if immediate harm to the faculty member or others is threatened by his/her continuance.” As psychology professor John Jones noted, “The norms in this country are very clear that suspensions should only be used in extreme cases and everything I know about these men suggests that this is a misuse.”

The charges filed against Peterson also prove that the DSU administration is violating its own policies for suspensions. None of them indicate that any physical threat is posed by Peterson, or that any immediate harm to anyone would be caused by allowing them to continue teaching, and DSU has failed to show any immediate harm. In fact, Peterson reported that he is still teaching his students, in his home, even though he’s not obligated to do so, in order to prevent the harm to their education caused by this reckless and unnecessary suspension. The use of a suspension to punish a professor who has not been found guilty of any wrongdoing is a violation of academic freedom. In addition to being suspended from his professional duties, Peterson reports that he is “prohibited from being on DSU campus and or property.” Being banned from campus requires an even higher standard of physical threat than a suspension, a danger that no one has ever alleged against Peterson.

In seeking revenge against Peterson, the administration has also engaged in petty acts that violate his rights and DSU policy. Peterson noted, “my DSU email account was disabled.” This is a violation of DSU policy, a violation of academic freedom (the administration cannot silence a professor’s email simply out of anger at them), and a violation of Peterson’s due process rights, since he must have access to his email to prepare a defense against the administration’s charges.

DSU’s IT policy allows it to revoke email access only “for non-compliance with this policy and any associated rules, standards, or acceptable use agreements or for any other reason in accordance with applicable institutional policies.” There is no policy allowing DSU to shut down the email account of a professor simply because of a suspension. None of the charges against Peterson make any mention of his email usage (although that would not justify shutting down his email account).

Another violation of due process in this case is that President Williams will make the decision on Peterson’s fate, even though Peterson is accused of slandering Williams in several of the charges. According to Policy 110, 4.7.3, “In any disciplinary matter, a faculty member has a right to adequate notice, to be heard, and to decision and review by impartial persons or bodies. In disciplinary proceedings involving a possibility of substantial sanctions, a faculty member has a right to full due process and peer judgment.”

DSU’s administration declared in a statement, “The university president is not involved in the initial investigation or decision-making process, so he/she can stay impartial for the appeal process.” Thus, DSU has openly admitted that it is necessary for the president to “stay impartial” and that if the president were involved in the investigation in any way that affected his impartiality, it would be a violation of a fair system and due process. Of course, that’s precisely what has happened. Even if the president had nothing to do with the decision to persecute Peterson, his impartiality is toast because Peterson is charged with slandering the president. Obviously, the president cannot impartially judge him. It would be like forcing a defendant accused of slandering a judge to have that judge determine the verdict in the slander case. It is unquestionably a conflict of interest and a violation of due process, and according to Policy 110, faculty members also have a “right” to “peer judgment,” which means that DSU policies now prohibit the president from overruling the peer judgment of a faculty hearing committee.

The fact that the administration press release falsely calls the upcoming disciplinary process an “appeal process” indicates the administration is trying to publicly promote the false notion that Peterson and Webb have already been found guilty of something and obscure the fact that President Williams will be the sole decision-maker in this case.

However, the policies of DSU do not allow the president to recuse himself or appointment a replacement. This means the only acceptable procedure in this case will be for the president to announce in advance that he will abide completely by the recommendations of the faculty committee in the Peterson case in their findings of guilt and any punishment that might be deserved, and for the faculty committee to require this. Any other action would be a violation of DSU policies on impartiality and peer judgment.

Another violation of due process against Peterson is the insufficient filing of charges. According to DSU’s Policy 371, the obligation of the administration in a dismissal notice is that “any such notice shall contain a statement of the cause(s) of the proposed dismissal with supporting detail, including the name(s) of the person or persons making the charge(s) and the nature of the factual information…” None of the charges against Peterson meet this standard.

Utah Board of Regents Policy R481, Academic Freedom Professional Responsibility, and Tenure, 3.8.1.1., requires “Notice of the cause or causes of the proposed dismissal in sufficient detail to enable the affected faculty member to understand and rebut them.”

No one is named in Peterson’s document making any of these charges. Few of the charges give a statement of the cause for dismissal or detail the policy violated, and none of them name the person making the charge that Peterson said certain things. Therefore, none of the charges provide sufficient detail to allow Peterson to rebut them. A faculty hearing committee would be entirely justified in immediately dismissing all charges against Peterson on the grounds that they were improperly filed in violation of Policy 371 and the Board of Regents Policy R481.

But all of these due process violations may obscure one critical fact: None of the charges against Peterson rise to the level of termination, and all of them are unjustified accusations. (Webb has not released his Notice letter.) Here is my summary of the 13 charges given to Peterson in the Notice letter seeking his termination:

1.     “disclosed confidential information” about Houser’s tenure review process.

2.     people “overheard his remarks”

3.     “improperly represented the Music Dept.” thereby violating Policy 633, 4.4.3.4.5 “act in any way as an official spokesperson of the University”

4.     “spoke on behalf of the Music Department” by telling someone that “the Music Department was refusing to work with the Theatre Department to produce musicals”

5.     “All of us at the Music Department don’t want Houser here.”

6.     “slandered Mark Houser” when he told a third person that Houser is “destroying” the Theatre department, a direct impact on Houser’s professional reputation.

7.     “slandered Mark Houser and DSU President Williams” when he told a person “loudly in a public place” that Houser and Williams were “corrupt” and “conspired together against Varlo Davenport”

8.     “slandered Mark Houser and DSU President Williams” by saying that were “part of a big conspiracy” to “get rid of Davenport.”

9.     “failing to ‘Demonstrate professional standards of behavior, including collegiality and the open exchange of ideas through civil discourse.’”

10.  “attributed wrongdoing to other members of the Music Department and boasted of influencing other Faculty Review members to inject bias on the Faculty Review Committee.”

11.  faculty reportedly said that “Ken Peterson is ‘known’ to speak to members of the public (‘to anyone who would listen’) about his dislike for Houser and his determination to have Houser terminated from DSU in violation of DSU policies….which requires that confidential information related to the tenure and promotion review process be kept confidential ‘indefinitely.’”

12.  “scoring of Houser’s Rubric provides evidence of Peterson’s biases towards Houser,” claiming that he violated a rule requiring “comprehensive review” and “application of appropriate criteria”

13.  “actions were intentional and willful to destroy the reputation of Mark House and were not in the interest of Dixie State University in violation of DSU Policy 633”  4.4.3.2.1 and 4.4.3.2.5

So let’s summarize this mish-mash of incoherent accusations to four basic charges: A) Slandering Houser (charges 6, 7, 8, 9, 13); B) Pretending To Be an Official Spokesperson of the University (charges 3, 4, 5); C) Bias in Houser’s Tenure Review (charges 10, 12); and D) Violating Confidentiality (charges 1, 2, 11)

A) Slander

There were five charges against Peterson that are based on “slander.” DSU must first show that slander is a violation of university policies rather than a civil action. In charge 13, DSU claims that by harming the reputation of Houser, Peterson violated Policy 633, 4.4.3.2.1 “Work in conjunction with faculty and staff colleagues to fulfill the mission of DSU” and 4.4.3.2.5 “Strive to achieve the purpose of the University when serving in administrative posts or on committees, with due consideration for other persons involved.” Of course, neither of these vague provisions have anything to do with slander. Charge 7 claims that Peterson violated “collegiality,” but the AAUP has never accepted that alleged lack of collegiality as a stand-alone criterion can ever justify terminating a tenured professor. Finally, DSU claims that Peterson is violating “the open exchange of ideas through civil discourse.” Of course, DSU is persecuting Peterson for too much open exchange of ideas and seeking to silence him, and therefore it is DSU administrators who are violating this policy.

Even if there were a policy against slander, in order to prove slander, the faculty committee will need to adjudicate the whole issue to determine if it is slander, because truth is a defense. First, DSU must provide testimony of Peterson’s actual statements, from actual witnesses. Second, because none of Peterson’s comments meet the “per se” standard for slander, DSU must prove that Houser’s reputation was damaged by Peterson’s alleged comments, and that this damage to reputation caused economic damage to Houser. Since Houser is still chair of the department despite a unanimous vote to deny him tenure, it’s hard to see how Peterson’s comments could have caused him any additional damage. The fact that Peterson’s alleged comments were not published anywhere makes this an extraordinarily difficult case to prove.

And since truth is an absolute defense to a slander charge, Peterson and the committee will need to be given access to all emails and documents, past and present, from Houser and President Williams about the Davenport case. Houser and Williams will have to give testimony about it, and Davenport and all others on campus can be called by Peterson to prove that what he is alleged to have said is true. And many of his comments are obviously true. For example, if Houser and Williams ever met to discuss firing Davenport, and they obviously did, it could truthfully be called a “conspiracy” to fire Davenport. Another defense to slander is opinion. So, a comment that someone is “corrupt” cannot be slanderous because it indicates mere opinion rather than a false statement of facts.

To summarize: DSU has no policy banning slander; there is no evidence at all that Peterson made the comments alleged, nor that these could ever meet a legal standard of slander; and a faculty investigation of this charge would require a massive undertaking to expose the full story of the Davenport firing.

B) Pretending to be an Official Spokesperson of the University.

This is a particularly ridiculous charge. Expressing an opinion about how the music department feels does not turn someone into an official spokesperson of the administration. Peterson never once claimed to be an official spokesperson, and the administration does not allege he ever did, so these charges can be dismissed very quickly, but they do reveal how dishonest the administration’s attack on Peterson is.

C) Bias in Houser’s Tenure Review

It would be shocking and unprecedented for a tenured professor to be fired because of their personal beliefs about the qualifications of a colleague for tenure. Faculty are given broad deference for judging their colleagues. Even if proven, ideological bias is not illegal, and not a punishable offense. According to one document, Houser wrote that all theater shows at DSU “need to be held to a standard which suits the maximum audience — no nudity, no sex, minimal violence/blood/gore, very minimal language if any (absolutely no GD, F-word) — and they should only be used so many times before it is deemed unfit for our audience.” This demand for massive censorship of plays by a theater professor would be sufficient for a reasonable person to find that professor unqualified to teach the subject; it’s like a biology professor requiring that no textbooks about evolution offend creationists. Punishing faculty for alleged ideological bias in the way they vote on a professor’s tenure bid is unprecedented in higher education, extraordinarily dangerous to academic freedom and shared governance, and without any basis in DSU policies.

D) Violation of confidentiality.

Confidentiality is the only charge listed against Peterson that someone could possibly find him guilty of, primarily because DSU’s radical confidentiality policy is so broad that lots of people violate it on a routine basis (including all of the administrators involved in prosecuting Peterson).

Here is DSU’s policy on confidentiality:

641 Retention, Promotion and Tenure Policy

4.3.1 For the purposes of this policy, confidential information is that which not generally known to the public. The confidentiality of information related to the processes outlined in this policy is to be respected. The confidentiality extends indefinitely, not just during the review period. Members of all committees and others with access to this information participate in the process with the understanding that all matters related to faculty reviews, including deliberations and voting results, must remain confidential. The rule of confidentiality does not expire. Even after a review is completed, committee members are prohibited from discussing any actions, deliberations, and recommendations of the committee, or any information about candidates derived from the review process. Individuals who violate this confidentiality will be considered in violation of DSU policy and may be subject to disciplinary action.

DSU’s confidentiality policy is one of the most extreme in academia, and it provides absolutely no exceptions. So, if a professor or administrator were legally compelled to testify about a faculty review as part of, say, a discrimination lawsuit or EEOC complaint, they would still be in violation of DSU’s policy and could be punished.

DSU’s policy also prohibits whistleblowing, including the revelation of criminal conduct. So, if the tenure process uncovers that a professor is molesting children, anyone who tells the police about the crime “will be” violating the confidentiality policy, even if they are legally required to do so.

Indeed, the prosecution of Peterson by the administration may require the administration to violate the same confidentiality policy. Because the members of Peterson’s faculty review committee were not part of Houser’s tenure process, no one is allowed to tell them anything about it, including administrators repeating (and confirming as true) what Peterson is alleged to have revealed privately.

But Peterson has one major defense available to him. DSU’s badly-written confidentiality policy defines the term this way: Anything “not generally known to the public” is confidential. That means anything generally known to the public is not confidential. And note that the standard is “known to the public,” not “known by the public”; the standard is what could be reported about because it was publicly available, not what most people actually knew about. So what is known to the public at the time of the start of the faculty committee hearing? Well, any information available in a public court document, public website, or public Facebook page is known to the public because it is publicly available. Everything Peterson is charged with revealing in violation of confidentiality is generally known to the public.

Although DSU’s confidentiality policy is terribly written and generally overbroad, it still offers an important caveat: “may be subject to disciplinary action.” Even if someone thinks Peterson violated the confidentiality rule, there is still no good reason to subject him to disciplinary action for violation of a minor policy, let alone the kind of extreme justification needed for a termination.

Just because a college has a terrible, overbroad policy allowing disciplinary action does not justify using that policy to dismiss faculty. Bad policies do not allow bad actions, particularly at public universities such as DSU that are subject to the First Amendment. Peterson is being punished for the exercise of his free speech and expressing his opinions critical of a department chair about matters of public concern (such as artistic freedom on campus and the academic freedom of colleagues). Even if Peterson never publicly discussed these issues and only shared them with a few colleagues, his freedom to speak must still be protected. Unlike many colleges, in Policy 110 DSU explicitly incorporates the AAUP’s 1970 Interpretive Comments into its policy, and the AAUP explicitly protects extramural comments. Policy 110 also includes a near-absolute defense of free speech, even when confidentiality is violated: “A faculty member’s exercise of freedom of communication, association, or assembly, or his or her participation in political activities, does not constitute a violation of duty to the University, to his or her profession, or to students, except as otherwise limited by the Hatch Act.”

Confidentiality is not a core academic value. Openness of information is the norm by which universities operate, not secrecy. Because DSU’s charges falsely conflate Peterson criticizing Houser with violating confidentiality, the entire case against Peterson for any kind of violation must be viewed with great suspicion.

In University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990), the University argued for recognition of a common law privilege against disclosing confidential peer review materials, and the Supreme Court unanimously rejected such confidentiality for tenure cases, and noted that “confidentiality is not the norm in all peer review systems.”

Enforced confidentiality of non-student information is not an academic norm. The 1966 AAUP Statement on Professional Ethics only mentions confidentiality as a professional obligation with regard to students, not colleagues: “They respect the confidential nature of the relationship between professor and student.”

In “The Ethics of Recruitment and Faculty Appointments” (adopted by the AAUP in 1993), confidentiality is only mentioned as a goal, not a requirement, for protecting candidates who work at other institutions from revealing that they are seeking another job: “Institutions should respect the confidentiality of candidates for faculty positions. The institution may contact references, including persons who are not identified by the candidate, but it should exercise discretion when doing so. An institution should not make public the names of candidates without having given the candidate the opportunity to withdraw from the search.” Nothing in the statement on the ethics of faculty appointments (adopted not just by the AAUP, but also by other higher education organizations) suggests that tenure should be a completely confidential process.

The 2013 AAUP statement on “Confidentiality and Faculty Representation in Academic Governance” declares, “Apart from personnel matters, therefore, the faculty must insist that advocates of confidentiality be required, in each particular instance, to demonstrate that the need for secrecy outweighs the need for transparency.” However, this is not an endorsement of confidentiality rules for personnel decisions, only a statement against requiring confidentiality in shared governance matters.

It appears that the AAUP has never officially taken up the topic of whether confidentiality can or should be required in faculty, and certainly the AAUP has never suggested that tenured faculty can be fired for violating that kind of confidentiality.

It is also extremely disturbing that the Administration included in the charges of violating confidentiality Peterson’s “dislike for Houser and his determination to have Houser terminated from DSU in violation of DSU policies….which requires that confidential information related to the tenure and promotion review process be kept confidential ‘indefinitely.’” Expressing a dislike for a professor and desire to have him fired is not a violation of any policies, and it has nothing to do with confidentiality.

In fact, if Peterson did say that Houser should be terminated, he is quite correct to do so. According to a website, Houser was denied tenure by a faculty vote of 15-0, and yet years later he remains on the faculty and the chair of the theater department. By AAUP rules and DSU’s policies, a professor is entitled only to a terminal year. By continuing to employ Houser as a professor in violation of the rules, DSU’s administration has given him de facto tenure and thereby undermined the system of earned tenure and shared governance. This is precisely the kind of information regarding public corruption that people deserve to know about a public university, and it should not be concealed by confidentiality rules.

In 2015, Dixie State had to settle a First Amendment lawsuit brought by student members of Young Americans for Liberty, who had posters showing George W. Bush, Barack Obama, and Che Guevara banned from campus because they might “disparage” individuals.

That settlement led to the creation of Policy 110, which declares that “Members of the University community shall have the right to freedom of speech and assembly without prior restraint or censorship, subject only to clearly stated, reasonable, and nondiscriminatory rules and regulations regarding time, place, and manner.” The policy states, “no disciplinary sanction may be imposed on a member of the University community or an organization by or in the name of the University except in accordance with the written regulations, policies or procedures of the University …”

The attempt to fire Peterson and Webb stands in direct violation of DSU policies and the standards of due process, free speech, and academic freedom. To preserve due process, DSU must immediately rescind the false statements about termination, overturn the unjustified suspension, banishment, and loss of email, and announce that President Williams will not make any decisions in this case and will instead abide by the faculty committee determination.

But DSU’s gross abuse of the termination process (both substantive and procedural) indicates a university where free speech is under fire. The charges against Webb and Peterson need to be withdrawn, and Dixie State University must make a commitment to support academic freedom rather than undermine it.