Letter from FIRE to UC Davis Chancellor Linda P.B. Katehi, July 13, 2012
July 13, 2012
July 13, 2012
Linda P.B. Katehi, Chancellor
University of California, Davis
Office of the Chancellor
Fifth Floor, Mrak Hall
Davis, California 95616
Sent via U.S. Mail and Facsimile (530-752-2400)
Dear Chancellor Katehi:
As you will remember from our previous correspondence, the Foundation for Individual Rights in Education (FIRE; thefire.org) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, due process, academic freedom and freedom of speech on America's college campuses. FIRE previously wrote to you on August 3 and November 23, 2011, concerning the free speech case of medical student Curtis Allumbaugh.
FIRE is disappointed to be writing to UC Davis with further concerns regarding free speech at the UC Davis School of Medicine (SOM), this time concerning the expressive rights and academic freedom of a member of its faculty. As a faculty investigation persuasively demonstrates, SOM has chilled the expression of Professor Michael Wilkes by threatening employment sanctions and legal action based on the expression of his scholarly opinions in a newspaper column.
This is our understanding of the facts, according to the May 18, 2012, report of the UC Davis Academic Senate's Committee on Academic Freedom and Responsibility (CAFR). Please inform us if you believe we are in error.
Wilkes has been a professor at SOM since 2001. He has been responsible for implementing SOM's four-year "doctoring" curriculum, for which he served as Instructor of Record (IOR) during the 2010-2011 academic year. As an expert on prostate cancer and prostate cancer screening, Wilkes has served as a Principal Investigator for multiple studies funded by the Centers for Disease Control and Prevention. In 2010, Wilkes served as Director of Global Health for the UC Davis Health System (UCDHS), and was involved in coordinating an exchange program for Hungarian medical students.
On September 28, 2010, UCDHS served as one of the sponsors for a "Know Your Stats About Prostate Cancer" awareness event, which was also sponsored by the National Football League. Wilkes, as an expert on prostate cancer screening, was concerned about what he perceived as the event's excessive promotion of the prostate-specific antigen (PSA) test for detecting prostate cancer. Wilkes expressed concerns in a September 16 email to several SOM administrators, but was told by SOM's Executive Associate Dean that "We cannot impinge academic freedom. Maybe you need to be more interactive internally."  By his account, Wilkes did attempt to bring his concerns to the persons involved in presenting the event.
On September 30, 2010, the San Francisco Chronicle published an opinion article by Wilkes, co-authored with Professor Jerome Hoffman of the University of Southern California's Keck School of Medicine, describing their concerns about the PSA test's effectiveness, questioning the propriety of UC Davis' sponsorship of the event, and raising the question of whether UC Davis stood to benefit financially from the event. Then, according to the CAFR report:
At 7:02 am on the same day the article appeared in print (9/30/10), the Executive Associate Dean wrote an email to the UCDMS Associate Dean for Curriculum and Competency Development with copies going to the Associate Vice Chancellor for Strategic Technologies and Alliances and Prof. Wilkes in which he stated that (a) Prof. Wilkes would not be invited to continue as doctoring Instructor Of Record (IOR) after the academic year and (b) resources to support Prof. Wilkes' Hungarian student exchange would be ceased after completing commitments to date. In a meeting with CAFR, the Executive Associate Dean acknowledged that he had read the San Francisco Chronicle article before he wrote this email.
On October 2, the same Executive Associate Dean emailed Wilkes regarding discussions of his "future with Doctoring 4 and with your position as Director [of] global health." Roughly three weeks after the September 30, 2010, email, the UC Davis Health System Counsel, at the request of the SOM Dean, sent a letter to Wilkes providing a list of statements in the article alleged to be false, offering reasoning as to why they were false. (The CAFR report, however, notes that "[t]he origin of the scholarly analysis is not stated and there is no indication that a scholarly review was conducted.") The letter concluded:
The purpose of this letter is not to stifle legitimate public debate, academic freedom or policy advocacy about the role of PSA screening or broader issues-far from it. I am simply pointing out that there are numerous errors of fact in your article, that they were injurious to the University interests and reputation and thus potentially actionable under the law of defamation.
Lastly, Wilkes was informed that his departmental space would be reassigned.
While the actions threatened against Wilkes have not yet taken place, the threats have not been formally withdrawn. Based on these and other factors, CAFR determined UC Davis to have violated Wilkes' academic freedom. On June 8, 2012, UC Davis' Academic Senate unanimously passed a resolution calling for the administrators involved to apologize for their actions and to formally retract all threats against him.
FIRE agrees with CAFR that these actions violate academic freedom. UC Davis' threat to punish a faculty member on the basis of his protected speech leaves the rights of all UC Davis faculty in serious jeopardy. This is deeply troubling at a public university such as UC Davis, given the Supreme Court of the United States' clear recognition that academic freedom is a "special concern of the First Amendment" and that "[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to teachers concerned." Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (internal citations omitted).
Several observations of the CAFR report are of serious concern to FIRE and warrant further comment. First, we agree with CAFR that "[t]he timing of events is highly suspicious." Whether SOM had been planning to take administrative action against Wilkes before sending its September 30, 2010, email-for which there is evidence to the contrary-the fact that it informed Wilkes of its intent only hours after the publication of Wilkes' column presents the unmistakable appearance of retaliation for his expression.  Such retaliation is in clear violation of UC Davis' stated promises that faculty have the right to "free inquiry, and exchange of ideas" and possess "constitutionally protected freedom of expression."
Further, according to the CAFR report, at no time has UC Davis alleged that Wilkes was in violation of any particular university policy-despite its threat of both adverse employment actions and legal sanctions against him. When a professor is threatened with the possibility of sanctions, such as the loss of teaching privileges or departmental space, the charges and possible sanctions must be presented and the professor must be allowed the opportunity for a hearing to defend himself. Bylaw 336.B.1 of the University of California Academic Senate states that "charges shall be in writing and shall contain notice of proposed disciplinary action and a full statement of the facts underlying the charges." Section 15.A.2 of the UC Davis Academic Personnel Manual (APM) further states that "No disciplinary sanction shall be imposed until after the faculty member has had an opportunity for a hearing before the Divisional Committee on Privilege and Tenure, subsequent to a filing of a charge by the appropriate administrative officer."
Rather than comply with its own procedures, however, UC Davis informed Wilkes of its predetermined sanctions mere hours after the publication of his column. The threat of these sanctions without any adherence to UC Davis' stated policies suggests a violation of Wilkes' right to due process.
Compounding these concerns is the fact that UC Davis apparently rejects the notion that the Health System Counsel's letter to Wilkes constituted any sort of threat at all. The CAFR report notes that, according to the UC Davis Chief Campus Counsel's explanation provided to the investigation:
[T]he Health System Counsel "letter in no way proposes or imposes disciplinary sanctions against Dr. Wilkes,["] ... "Publicly broadcast false statements that injure the University's interests and reputations are potentially actionable as a tort. Such a statement is a fact. It is not a threat and it is not a sanction." ... and ... "The administrative action elected in this case was simply to provide information to Dr. Wilkes regarding the false information in his article and the potential legal exposure for broadcasting false information that is injurious to reputation...."
This defense is implausible and disingenuous, given the obviously chilling implications of the Health System Counsel's letter, which warned Wilkes that his column was "potentially actionable under the grounds of defamation." UC Davis' characterization of the letter as being intended "simply to provide information regarding ... potential legal exposure" strains credulity.
No reasonable professor, after offering his scholarly opinion on a matter in his field, would read such a letter and conclude that it was intended as anything other than a clear, sharp warning.
Notably, as CAFR points out, the Health System Counsel did not send a similar notice to either Wilkes' co-author, Jerome Hoffman, or the San Francisco Chronicle. If UC Davis was concerned solely about protecting its "interests and reputation" and correcting what it believes to be "numerous errors of fact"—and not simply silencing a dissenting professor—surely it would have written all those against whom it might have legal recourse on account of this alleged harm. This omission suggests that UC Davis was far more concerned about its public image than it was about the truth or falsity of Wilkes' column, or whether any of its statements rose to the level of defamation. The chilling effect on Wilkes' speech has been profound, as it is for all UC Davis faculty members who might otherwise speak their consciences, and risk courting controversy, when they feel their expertise can contribute positively to debate on matters of public concern.
We understand that UC Davis Executive Vice Chancellor and Provost Ralph J. Hexter, in a June 15 statement, has acknowledged that the conclusions of CAFR's report are "deeply troubling" and has promised to review the case and take "appropriate actions." FIRE asks now that UC Davis formally withdraw the threats made against Michael Wilkes, publicly acknowledge its violation of his academic freedom, and reassure its faculty that they will not face retaliation for their expression.
We ask that as you review this troubling case, you recall the Supreme Court's decision in Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957), in which the Court eloquently stated:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. ... Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. [Emphasis added.]
We request a response to this letter by August 3, 2012.
Senior Vice President
Ralph J. Hexter, Provost and Executive Vice Chancellor
Steven Drown, Chief Campus Counsel
Claire Pomeroy, Dean, UC Davis School of Medicine
Frederick J. Meyers, Executive Associate Dean, UC Davis School of Medicine
Anna Orlowski, Chief Health System Counsel, UC Davis Health System
Gregory B. Pasternack, Chair, Committee on Academic Freedom and Responsibility, UC Davis
Moradewun Adejunmobi, Committee on Academic Freedom and Responsibility, UC Davis
James Beaumont, Committee on Academic Freedom and Responsibility, UC Davis Academic
Eric Nelson, Committee on Academic Freedom and Responsibility, UC Davis Academic Senate
Adela De La Torre, Committee on Academic Freedom and Responsibility, UC Davis Academic
Jane-Ling Wang, Committee on Academic Freedom and Responsibility, UC Davis Academic
 The SOM and UCDHS officials are mentioned in the CAFR report only by title and not by name. Claire Pomeroy is currently SOM Dean, Frederick J. Meyers is currently SOM Executive Associate Dean, and Anna Orlowski is currently UCDHS Chief Health System Counsel.
 At minimum, CAFR determined that there was "no evidence to indicate that Prof. Wilkes' space was under review for reassignment prior to the date the article was published" and "no evidence to indicate that the Hungarian student exchange and Prof. Wilkes' role as director of global health for UCDHS was under review or had reached a level of poor performance to necessitate cessation at that specific moment in time."