BY DANIEL A. SEGAL

On April 15 of this year, Pitzer College’s Title IX Coordinator informed me that a student had filed a complaint against me alleging both “harassment on the grounds of sex/gender” and “harassment on the grounds of ancestry.”  The case ended with a determination that there were no violations of policy, no harassment, and also, very importantly, no recommendation of remedies for the alleged harassment.

Given that the allegations—some nine, depending on how they are parsed—pertained at their “core” (to quote Pitzer’s Dean of Faculty) to speech and conduct self-evidently integral to the delivery of legitimate course content, this determination might seem a reassuring outcome for anyone who values academic freedom.  One of the charges I faced, for example, was that screening the Holocaust documentary Night and Fog in my world history course subjected the complainant to harassment (though harassment on which grounds was not specified).  A second charge was that a lecture in the same course, one concerned with the history of atomic weapons, “shared that bikinis (the cut of swimsuit) were named after the Bikini Islands,” specifically following the first detonation of an atomic bomb there, in July 1946.

Yet, even though the adjudication of the allegations arrived at an outcome grounded in academic freedom protections, an examination of the adjudication process makes clear that it had trampled academic freedom—mine most immediately but, verily, that of every Pitzer faculty member.  Focusing on the outcome alone misses that it took more than four months from when I first received notification of the allegations until the college affirmed that academic freedom protections pertained to the instances of speech and conduct in the delivery of course content that the complainant alleged were harassment.

The intervening 126 days of the adjudication process involved (i) an investigation by a three-person faculty committee, (ii) a subsequent determination regarding the allegations by the college’s Dean of Faculty, based on the investigative report, and (iii) a final review of both the investigative report and the Dean’s determination by the college’s Faculty Executive Committee.  At all three points, the judgment was the same: there was no policy violation, no harassment, and no recommendation of remedies.  The investigative committee, moreover, found no disputes about material facts in the case, meaning that even if all of the complainant’s specific and relevant factual claims were assumed to be true, my speech and conduct identified as “harassment” by the complainant were not, in fact, cognizable (that is, legitimately conceived of) as harassment.

For my part, navigating the adjudication process, including preparing detailed responses to each allegation, required the plurality, and perhaps the majority, of my work time over those 126 days.  The adjudication process was, in short, debilitating.  Moreover, out of reasonable caution, I retained legal counsel, and I would advise any colleague facing similar allegations to do so as well—despite how costly legal counsel is, especially relative to faculty salaries.

Pitzer’s Faculty Handbook includes a strong and clarion affirmation of academic freedom protections for faculty, including specifically for teaching.  Yet that affirmation did not shield me from being subjected to this adjudication as a consequence of my having done nothing other than what faculty should do: teach on the basis of their knowledge and best professional judgment.  So too, regardless of the “good outcome,” the experience left me knowing that I—and any of my Pitzer colleagues—could be subject to a similarly debilitating adjudication process in the future, should anything any of us teaches offend a student (or an administrator or even another faculty member) who then files a charge of “harassment.”  There can be no question that simply this possibility has a chilling effect on speech and conduct in teaching.

I wish I could say that this is not true in my case.  I wish I could say that despite having been subjected to a debilitating adjudication because my teaching, based on my knowledge and best judgment, had offended a student, I would never hold back from teaching controversial and disturbing material in the future.  Regrettably, however, I know that this experience has impacted my teaching.  I know that in teaching this fall, my consciousness of the adjudication process has been a recurring distraction undermining my focus, especially in the give-and-take of classroom discussions where a faculty member cannot prepare comments in advance.  And I know that at some moments in those discussions, it has led me to “not go there,” that is, to not explore certain examples or lines of thought that I otherwise would—and should—have pursued.  I am a tenured full professor, moreover, and a scholar with a professional network that affords me unusual support and security.  One can only imagine, then, how much more chilling the possibility of such an adjudication would be for colleagues concerned with future reviews for tenure and promotion, as well as those aiming to move from adjunct to tenure-track positions—especially at this historical moment of hyper-precarity for these colleagues.

The conclusion is unavoidable: academic freedom protections for faculty are not intact at Pitzer College at this time, which means, also, that those protections are not serving their crucial function of fostering educational excellence at the college.

The most visible problem with the adjudication process was, as I have noted, its duration.  Yet, time cuts both ways in such matters.  There are instances of legitimate harassment allegations against a faculty member that require lengthy adjudication (inclusive of an investigation) in order for the process to achieve a principled and fair outcome.  Thus, while the length of the adjudication process was a burden for me, that length was not itself the underlying problem with the adjudication; it was, rather, a symptom.  What fundamentally was amiss—and what allowed the adjudication process to extend for 126 days even though there were no disputes of material fact, and even though the speech and conduct alleged to be harassment was not cognizable as harassment—is that the adjudication process was predicated upon setting aside academic freedom protections.  Had those protections been applied to the allegations at the outset, then at that initial moment the conclusion would have been that the allegations were ill-conceived, and this would rightfully have brought the matter to an end without the subsequent adjudication.  Once academic freedom protections were set aside, the process thus ceased to be a legitimate adjudication.  It became, rather, a punishment for fully protected teaching—notwithstanding the “good outcome” four months later.

This then is the fundamental lesson of this case: for academic freedom to be robust—for academic freedom to genuinely exist at a college—academic freedom protections must be affirmed continuously, not only in outcomes.  Academic freedom protections cannot be a sometime thing.  And they specifically must be affirmed at the outset of an adjudication process.

A potent mechanism to achieve this goal is in place at many but not all colleges and universities.  That mechanism is an initial screening of the charges to assess whether the alleged conduct, even if it occurred, is cognizable as a policy violation, especially (but not only) regarding speech and conduct covered by academic freedom protections for faculty.

An earlier incident in my thirty-six-year career at Pitzer illustrates the importance and potency of such an initial screening of allegations against a faculty member.  It was in the 1990s and I was teaching a seminar on social stigma.  I included on the syllabus John Sayles’s 1983 film Lianna, a work that critically examines the normalized, vicious homophobia of US society in that time.  The film includes a scene with two women in bed kissing.  At the moment that scene appeared on screen in my classroom, one of the students bolted from the room and went directly to the Dean of Faculty to lodge a complaint that Professor Segal had made her watch something “disgusting,” something she should never have to see: two women kissing.  The Dean listened and then informed the student that assigning the film was a legitimate part of the delivery of course content and was thus covered by academic freedom protections.  That meeting of the complainant and Dean, and the Dean’s response to the complainant, was, in effect, an initial screening of the allegation based on a firm understanding that academic freedom is foundational to the very enterprise of higher education.

Every college and university should include in their harassment policy such an initial screening of charges against a faculty member, since—as the adjudication against me in 2021 shows—the lack of such an initial screening allows faculty to be subjected to a debilitating adjudication for doing precisely what they should do as teachers.  Though the successful screening in the Lianna case was conducted by a Dean, it is even better if such a screening is done by, or with a primary role for, a duly constituted faculty body.  For its part, the AAUP should prepare and adopt a statement in support of such an initial screening of allegations against a faculty member, as an extension of the association’s longstanding efforts to define best practices in support of academic freedom.

The adjudication against me this year offers several additional lessons for fortifying academic freedom protections—lessons that pertain equally to cases involving legitimate, rather than ill-conceived, charges of harassment.  To start, Pitzer’s policy and procedures for hearing charges of harassment are complex, opaque, and even internally inconsistent on some points.  A primary reason for this is that the college’s harassment policy has been revised several times in recent decades, in response both to heightened concern about harassment and to shifts in directives from the U.S. Department of Education.  Unfortunately, in making these serial revisions, insufficient care has been given to the challenge of producing a consistent and readable (or even merely an adequately proof-read) policy.  The resulting mash-up is equally bad for complainants and respondents.  Colleges and universities must, in short, take responsibility to produce statements of policy that are integral wholes and readily comprehensible.  I fear that Pitzer College is not the only institution that falls considerably short in this regard at this time.

Internal inconsistencies foreground an important fact about all policy.  Policy does not apply or implement itself; there are always questions of a policy’s relationship to a particular case.  A key question, then, is who or what body performs this crucial work, involving interpretation and judgment, of applying a policy to a particular case.  As it happens, one portion of Pitzer’s written policy mandates precisely the sort of initial screening I have argued is crucial, while a second firmly precludes it.  Importantly, in the face of these opposite directives, the determination of which was controlling in my case was made by an administrator, specifically the college’s Title IX Coordinator (this even though the matter was being heard not under Title IX rules, but under separate college harassment policies).  I am confident that the Coordinator’s decision to adopt the second procedure, foregoing a screening of the allegations, was made in good faith; and the decision was certainly reasoned and cogent in the abstract, as the Coordinator explained it to me.  Despite this, I also think it was the wrong decision, given that it set aside academic freedom protections for teaching.

Yet fully apart from this substantive issue, that it was an administrator that made the decision itself trespassed academic freedom protections, since it violated the principle that disciplinary proceedings against a faculty member must proceed firmly under faculty purview.  Having a faculty investigative committee is of great value in this regard (and the faculty investigators did exemplary work in my case), but it is insufficient if that faculty committee operates within procedures determined by an administrator.

An especially notable harm from such increasingly common administrative overreach involves constraints on faculty speech.  Early on in the adjudication process against me, I sought to bring my concerns about its setting aside of academic freedom protections to the college’s Faculty Executive Committee, but the Title IX Coordinator told me that my doing so would be a breach of “confidentiality obligations” that could itself lead to sanctions against me.  Especially because my situation was already so vulnerable, that “information” from the Title IX Coordinator effectively silenced me and, with this, rendered the Coordinator’s decisions un-reviewable and their consequent harms irremediable.

Faculty today are widely aware of a vast expansion—indeed a veritable explosion—of claims by administrators that faculty must operate under confidentiality obligations in various contexts, thus curtailing faculty speech and academic freedom.  The AAUP took up one aspect of this issue in its 2013 statement, “Confidentiality and Faculty Representation in Academic Governance,” but there is cause for the AAUP to look at the issue of “confidentiality” anew and far more broadly, given the steady legalization (or more precisely, pseudo-legalization) of higher education in recent decades.  The potential harms from administrators restraining faculty speech are, I would argue, so grievous that the circumstances where this can be allowed need to be narrowly defined and clearly spelled out; this in contrast to the promiscuous invoking of “confidentiality obligations” by administrators that has become so common on our campuses and that specifically occurred in the adjudication against me.

I want to end with two final points.  First, I have argued that academic freedom protections shield all conduct and speech made in the delivery of legitimate course content from charges of harassment.  A possible objection to this view involves cases in which a faculty member teaches truly egregious content, albeit sincerely on the basis of their knowledge and best judgment: a historian who teaches that enslaved persons were treated well on the plantations of the Americas, for example; or a scientist who teaches that burning fossil fuels is not responsible for severe climate change.  Yet to hold, on academic freedom grounds, that even such egregious teaching cannot be harassment, however much it offends some students, is not to hold that such teaching is not reviewable.  The point is rather that the proper venue for such cases is in peer reviews regarding a faculty member’s professional competence to teach in their field.  For probationary faculty, such reviews occur as a matter of course, and such egregious teaching, once established, is properly grounds for non-renewal.  For tenured faculty, such peer reviews of a colleague’s continued competence are extraordinary and rare, exactly as are cases of such egregious teaching; this in large part because of the rigors of acquiring a terminal degree, getting hired into a tenure-track position, and attaining tenure.

But what also is crucial is that the legitimate issue in all such reviews of professional competence, of both probationary and tenured faculty, is not whether a faculty member’s teaching has offended students (or administrators or even other faculty members), but whether disciplinary peers find the colleague incompetent.  These are profoundly distinct issues—and that is what is affirmed by saying that academic freedom protections mean that even the teaching of the most egregious content is fully shielded from allegations of harassment.  Charges of harassment are not the cure for all that ails us.

Second and finally: I would steadfastly resist reading my case as evidence of some difficult and troubling conflict between a commitment to academic freedom and a commitment to act firmly against any and all harassment on our campuses.  To the contrary: the ill-founded adjudication of my case was as harmful to the latter as the former.  It absorbed considerable institutional resources that were needed to respond to legitimate charges of harassment, primarily the time of the Title IX Coordinator, but also money that was spent on both college legal counsel and an independent “trainer” of the faculty investigators (a phrase that should itself give us great pause).  In addition, by trampling both academic freedom and the pursuit of educational excellence, the adjudication undermined the legitimacy of the college’s procedures against harassment—and indeed, if one is honest, of the college itself.  The struggle for academic freedom and the struggle against harassment can—and they must—be brought together in our collective pursuit of educational opportunity and excellence on our campuses.  If we do otherwise, both will fail.

Daniel A. Segal is Jean M. Pitzer Professor of Anthropology and Professor of History at Pitzer College and acting president of the Claremont Colleges AAUP.