BY JOHN K. WILSON

Dixie State University (DSU) in Utah, after trying and failing to fire music professor Ken Peterson for the crime of gossip, is now declaring that Peterson, to keep his job, must sign a “Last Chance Agreement” that is one of the most extreme violations of academic freedom and free speech that I’ve ever seen.

Back in March, I reported on the appalling treatment of Peterson, which included an arbitrary suspension without due process and being banned from campus for no reason at all.

In July, the news media reported good news: After a faculty committee rejected Peterson’s firing, and the Utah System of Higher Education decision announced his reinstatement, the DSU administration declared that it “wholeheartedly supports this decision, and we look forward to working with Peterson again.”

This turned out to be completely untrue. The “Last Chance Agreement” is extraordinary in the demands it makes of Peterson, violating his First Amendment rights and infringing upon his academic freedom over and over again. The agreement requires Peterson to agree that he has “demonstrated unprofessional/uncivil behavior towards DSU and its faculty, staff, and administration” and “inappropriate behavior towards DSU students.”

The agreement announces that Peterson (who was accused of being overheard criticizing a professor who was denied tenure but still remains on the faculty at DSU) cannot be trusted “to act professionally and appropriately, in unsupervised or secluded areas” and “therefore, Dr. Peterson will be assigned a 12-credit course load of General Education courses and 3-Service credits per semester.”

This ban from normal music instruction is particularly severe because according to DSU’s agreement, this will apply for the rest of Peterson’s career without any possible review or appeal. He will never be allowed to teach music lessons to students again. Indeed, even if Peterson wanted to volunteer to teach students private lessons off campus, he could not mention this fact to any students while on DSU property: “nor shall Dr. Peterson actively recruit/advertise private lessons and/or any other private business with DSU students while on DSU property, facilities, or during any DSU sponsored event.”

Many of the provisions of the agreement are clear restrictions on his academic freedom and free speech rights: “Dr. Peterson shall not engage in any conduct that will damage, undermine, or sabotage DSU’s Voice, Music, Theater, Art, and Dance programs or faculty.”

Almost anything could be held to “undermine” or “damage” a faculty member. For example, if Peterson found out that a professor was sexually assaulting students, he would be in violation of this agreement to report this fact to anyone, because that would damage the faculty member committing these crimes.

The agreement declares: “Dr. Peterson shall not make unfounded or untruthful derogatory statements about Dixie State University and its faculty, staff, students or administration.”

Even if Peterson says something true about anyone at DSU, if it is deemed “unfounded” and derogatory, then he will be fired.

DSU even declares under the agreement that the appalling provisions of the “Last Chance Agreement” must be concealed or he will be fired: “He shall not share and/or discuss the content of this Last Chance Agreement including the circumstances and details of Dr. Peterson’s suspension and subsequent reinstatement.” Peterson would be banned from saying anything about his unjust suspension. Even if a faculty or legislative committee wanted to investigate the appalling conduct of the DSU administration in this case, Peterson would be fired for saying anything to them.

This is a shocking suppression of free speech. Many of the other commands in the agreement are extraordinarily broad and undefined such as “Dr. Peterson shall cease unprofessional behaviors.”

The agreement also declares: “Dr. Peterson shall not knowingly and intentionally take any action that will result in physically being closer than five hundred (500) feet of Mark Houser and Mark Houser’s Family members (Hereafter collectively referred to as “Houser”) while on or in any of DSU’s campuses or facilities.”

The primary accusation against Peterson was that he was overheard telling a faculty colleague about the unanimous 15-0 vote by a faculty committee to deny tenure to Houser, who continues to teach at DSU despite the tenure denial in 2014 and again in 2017.

So why should Peterson be forced to stay 500 feet away from Houser or, more bizarrely, all members of his family? There’s never been any kind of accusation that Peterson poses a violent threat to anyone.

The agreement includes a very broad ban on Peterson’s free speech:

Dr. Peterson shall refrain from such behavior construed as being unprofessional and uncivil to DSU’s faculty, students, administration characterized by:
1. Verbal, written, and/or physical diatribes that would cast himself or DSU in an unfavorable light in the view of the communities served by DSU;
2. Harsh, foul or coarse language used to insult others;

I confess that I have no idea what a “physical diatribe” is, but the First Amendment clearly protects the rights of professors to make verbal or written diatribes in their extramural comments. A ban on writing or saying anything that might put DSU in an “unfavorable light” is clearly a violation of free speech (and that would obviously include any mention of the DSU administration’s behavior in the Peterson case).

This provision also bans “harsh” language “used to insult others,” which is another clear violation of the First Amendment. For example, asking “what stupid censor would come up with an agreement like this?” would be a clear violation of this rule, even though it’s an entirely reasonable question to ask.

The agreement declares, “Nor shall Dr. Peterson violate any DSU Policy,” so even the smallest violation of the most obscure DSU Policy would be grounds for termination under this agreement.

The agreement also requires: “Peterson will demonstrate continued and sustained improvement in the areas of concern addressed herein and that he will comply with all the performance and conduct standards expected of all DSU’s employees.”

This is a particularly bizarre provision in the contract. It means that even if Peterson follows all the rules, he can still be immediately fired if he fails to show “continued and sustained improvement” for the rest of his career. This is an extraordinary rule in an unbelievable contract.

That’s not an exaggeration. The contract has an explicit provision for dismissal if Peterson violates any provision in it:

Dr. Peterson acknowledges and agrees that if he engages in any conduct prohibited by this Last Chance Agreement or fails to comply with any conditions required by this Last Chance Agreement, then (i) DSU’s Human Resource Department and Office of the General Counsel will promptly investigate any claim of conduct that is prohibited by this Last Chance Agreement when DSU becomes aware of the alleged conduct, and (ii) any substantiated claim of prohibited conduct shall constitute just cause for his discharge from employment at DSU; and (iii) DSU shall immediately move for the termination of Dr. Peterson pursuant DSU Policy 371: Faculty Termination.

The assertion that any violation of these extremely broad rules will automatically result in termination is a complete violation of academic standards. Faculty should only be terminated when their actions are so serious as to deserve termination, not because they violate vague rules that apply to no other employees on campus.

From the start, one bizarre aspect of the DSU administration’s pronouncements about the case had disturbed me. DSU repeatedly announced that Peterson and Webb had been terminated. In reality, the administration was merely beginning the process of seeking to terminate them. But by lying and claiming that Peterson was already terminated, DSU apparently thinks it can impose terms on his “reinstatement” to a termination that never happened.

The Peterson case bears some resemblance to that of John McAdams at Marquette University, who also faced an administration wrongly demanding that he submit to demands that he admit his guilt as a condition for reinstatement. But the Peterson case is much more obvious. Peterson is teaching at a public university whose demands are a clear violation of the First Amendment. DSU’s demands on Peterson go far beyond what McAdams faced (and may go beyond what any university has demanded of a professor in a contractual agreement in the entire history of higher education).

There should be no conditions for Peterson to resume teaching at Dixie State University, particularly in a case where Peterson was falsely accused of charges that could not justify dismissal. But the fact that DSU is explicitly requiring violations of the First Amendment as a condition of employment for a professor is absolutely unacceptable.

Perhaps DSU designed a “Last Chance Agreement” that was so ridiculous they knew Peterson would never sign it, and then they plan to use his refusal as grounds for the termination they plotted from the beginning. DSU’s “Last Chance Agreement” was their last chance to comply with the First Amendment, the decision of a faculty committee, and DSU’s own policies. The administration of Dixie State University has failed to meet even the most minimal standards of academic integrity, shared governance, freedom of speech, and academic freedom.