A mockery of justice at the University of New Mexico

I first corresponded with University of New Mexico professor Nick Flor in September, when he sent an email through FIRE’s case submission page. 

In his email, Flor detailed how a brief, ill-advised romantic correspondence with a 35-year-old female graduate student (who was not in any of his classes or under his supervision) turned menacing when she threatened to expose their communications to people in his department if he did not reply to her emails. 

Professor Flor was trying to end their correspondence. But when he reported her extortion efforts to the university as harassment, they found him responsible for harassment, in a decision that defies all of the facts of the case (which are very clear and incontrovertible, because the entirety of their communications took place over email and text). 

UNM’s actions, shocking as they are, reflect just how low universities are willing to sink when they think no one is watching.

As of now, Flor has been suspended for a year without pay, and is prohibited by the university’s “outside work” policy from working more than 39 days at any other job. It is very difficult to fire a tenured professor, so by depriving Flor of the ability to support himself during his suspension, it seems that UNM is trying to force him out instead. 

Oh, and did I mention all of this happened without so much as a hearing or an opportunity for professor Flor to confront his accuser in any way?

UNM’s actions, shocking as they are, reflect just how low universities are willing to sink when they think no one is watching. Unfortunately for UNM, Nick Flor — to his great credit — has been unwilling to take this lying down. Not only for his own sake, but because he recognizes that egregious abuses of student and faculty due process rights are commonplace at institutions around the country, particularly in the context of campus Title IX adjudications. 

So, for the past several months, Reason reporter Robby Soave has been working on an exposé of UNM’s egregious mistreatment of Nick Flor. That article came out today, and we can now begin to shed some sunlight on the dark corners of UNM’s disciplinary processes.

Soave details how Flor was approached by a 35-year-old graduate student — whom Soave refers to by the pseudonym “Julia” — in a copy room at the university, and how the two then struck up an email exchange that briefly (for a period of several weeks) turned romantic before Flor thought better of it and re-directed the conversation to amicable and professional topics. Over the course of their correspondence, they also discussed the possibility that Julia might work for Flor as a summer research assistant. He continued to offer her that job after he ceased their romantic communications, but she angrily turned it down. 

UNM’s conduct in this case has been nothing short of reprehensible.

The longer Flor refused to engage in romantic correspondence, the angrier Julia became, ultimately threatening to expose their communications to people in his department, stating in a June 24, 2018, email (on file with FIRE), “even though I do not know what their faces look like, it’s still fun to picture and imagine what their faces would look like if I were to send them those screenshots … .” 

She continued to threaten to expose their relationship over the next several days, writing on June 29, “if you’re my friend, truly - then you can know you can TRUST me 100%. that i will never intentionally hurt or attack you, frustrate you etc. However, on the other hand, if you are not my friend, that is a different story and i can 100% not make those promises.”

That week, Flor reported her threats to his department chair, and the university opened a harassment investigation into Julia. But when university administrators met with her, she filed a complaint of her own, accusing Flor of quid pro quo harassment (over the job offer) and retaliation (for accusing her of harassment). Both of these claims are patently absurd: The email timeline unequivocally establishes that Flor continued to offer Julia the job after he discontinued their romantic correspondence, and it is hardly retaliation to report someone for trying to extort you. 

But, as Soave writes, the university saw it differently: 

The report found him responsible for quid pro quo sexual harassment and retaliation. In the [Office of Equal Opportunity’s] view, Julia might have believed that she needed to send him sexual messages in order to get the research position—a classic example of quid pro quo harassment. Flor’s decision to report Julia’s threats constituted retaliation.

Interestingly, these findings came only after the university, without explanation, dismissed the outside investigator it assigned to the case and replaced him with its own internal investigator. The university has yet to offer any reason for this replacement. 

Flor appealed the university’s decision to UNM’s Board of Regents, which could, in its discretion, take up appeals in cases like his. At this point, FIRE wrote a letter to the regents, detailing the egregious due process violations in Flor’s case and urging them to overturn the decision:

Credibility is a significant factor in Flor’s case. [Julia] has a history of erratic behavior with UNM faculty, and Flor was not the first faculty member to file a harassment complaint against her. In addition, another professor who did not file a formal complaint against her cut off communications with her after becoming uncomfortable with the nature of her communications. (She has now filed a complaint against that professor as well.) Had Flor been given the opportunity to ask questions of [Julia] or of these witnesses during a proper hearing, he might have been able to call into question her credibility in this case—but UNM provided him no such opportunity. Not only was Flor unable to confront his accuser in any meaningful way (such as by cross-examining her or even by posing questions through a hearing panel), OEO did not even interview many of the individuals who Flor believed might have critical exculpatory information. These egregious denials of due process led to a finding of responsibility in his case that is wholly unsupported by the evidence.

The Regents declined to hear Flor’s appeal, however, and he was ultimately suspended for a year without pay. Moreover, as Soave writes:

In the meantime, Flor can’t even look for alternative long-term work. The University of New Mexico has a policy prohibiting employees from working at any other job for more than 39 days per year. Flor asked the administration if he still counted as an employee during the term of his suspension. He was informed that he did.

While Flor is still permitted to appeal the severity of his sanction through a faculty “peer hearing,” the faculty panel is limited to considering the appropriateness of the sanction, and may not reconsider the underlying facts of the case. 

Nick Flor knows that his email relationship with Julia was ill-advised:

“I can’t excuse my behavior,” Flor tells Reason. “I exercised poor judgment.”

But making a poor decision about having a consensual, extramarital flirtation is a far cry from harassment and retaliation, and UNM’s conduct in this case has been nothing short of reprehensible. 

With no hearing, and no opportunity for cross-examination, it found a professor guilty of harassment in defiance of all of the evidence, and is now trying to force him out by wrongly suspending him and then prohibiting him from earning a living during his suspension. 

One of FIRE’s unofficial mottos has always been that universities cannot defend in public what they try to do in private. The University of New Mexico’s conduct is now public, and FIRE hopes that alumni, donors, the media, and the public will demand that the university provide Nick Flor with the fundamental rights to which he is both constitutionally and morally entitled.