Brandeis Provost Misrepresents Its Prosecution of Professor's Classroom Speech

This morning, Brandeis Provost Marty Krauss sent Brandeis faculty a letter defending the indefensible investigation and punishment of longtime professor Donald Hindley for his classroom speech. To make matters worse, this letter outright misrepresents the violations of Brandeis's own policies identified by Brandeis's own Committee on Faculty Rights and Responsibilities (CFRR) numerous times.

In addition, in this letter the Provost fails to apologize for these violations, downplays the Brandeis faculty's justified fears of new prosecutions, and ignores the scathing CFRR reports. Why does President Reinharz permit Krauss to continue refusing to own up to her missteps? This is a question the Brandeis Board of Trustees should be asking Reinharz.

Here is Krauss's letter, available in full on FIRE's website, with interpretive comments:

Dear Faculty Colleagues,

I am well aware that many of you are concerned about the investigatory process and outcome following a complaint by a student last semester

There had been uncertainty about how many students actually complained; the Provost had stated that several students were involved. Finally, here is an admission that there was just one. The rest of Hindley's class was never interviewed in order to discover the true context of Hindley's classroom remarks.

against a member of our faculty. As a member of the faculty and as an administrator, I share with all of you the goal and expectation that our university policies reflect our core values of academic freedom,

Even if Brandeis policies do reflect the value of academic freedom, Krauss's interpretation and execution of university policies have greatly violated Hindley's academic freedom.

the right of our students to a learning environment that is free of harassment,

As the CFRR pointed out, Krauss's definition of harassment, as used against Hindley, bears no resemblance to the federally related offense of "harassment." The policy, as applied, was overbroad and a violation of Hindley's academic freedom.

and the right to privacy in personnel matters.

This ignores the fact that both Krauss and Steven Burg (Hindley's department chair) have commented publicly on the case already, according to Hindley.

As you know, the University is legally required to have a non-discrimination and harassment policy.

For years universities have claimed that federal harassment regulations require them to police and punish protected speech as harassment. The Office of Civil Rights of the Department of Education specifically addressed this misinterpretation in a letter sent to universities nationwide in 2003. The OCR wrote: "OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR." This clarification was specifically directed towards preventing universities like Brandeis from hiding behind federal harassment law as an excuse for violations of free speech and academic freedom. Krauss has conveniently ignored this fact.

Our policy and investigatory procedures were substantially revised in 2006, following extensive discussions with the Faculty Senate. These procedures instructed the investigation

They did not "instruct" the investigation much at all-quite the opposite. Once again, see the CFRR reports, which show the many violations of procedure in Hindley's case.

conducted last semester and that case is now considered closed.

Hindley's active appeal was simply discarded by the Provost. By closing the matter and preventing Hindley's appeal from moving forward, the Provost again has violated Hindley's right and expectation of due process according to Brandeis's own policies.

Because of our obligation to ensure confidentiality, I have been unwilling to comment publicly about this case, despite the misrepresentations of the investigatory process and outcomes

The CFRR had full access to the complete set of investigatory materials. FIRE has relied entirely on the CFRR reports, other official documentation of the case, and Hindley's recollection of his one interrogation by Director of Employment Jesse Simone-after her investigation had progressed for weeks without him. It is shameful that the Provost would again attack her critics, who have provided compelling information.

that are now widely circulated in the media.

The media have not been kind to Krauss, and for good reasons.

Some of you have expressed confusion concerning what constitutes racially harassing speech

Again, this is because Krauss and Simone employed an overbroad definition of harassment that would even ban the use of an epithet in the context of a criticism of the word's use.

and how the University conducts a legally required investigation.

The investigation should have ended as soon as it became clear that Hindley's words were protected speech (and therefore could not be punished under federal harassment law as stated unambiguously in the OCR letter) and, at very least, when it became clear they did not fit any reasonable definition of harassment. But Hindley has never even been told in writing what he allegedly said and never has had a chance to defend himself against such unspecified charges.

As a community, we can all agree that this confusion is not healthy

This confusion is a direct result of Krauss's and Simone's actions, as well as the actions of Burg and others along the way.

and that we must work together to understand both our legal and academic responsibilities. I have been and will continue to work with the Faculty Senate Council

Let's not forget the unanimous Faculty Senate resolution expressing serious concern about Hindley's treatment, including the Provost's violation of the Faculty Handbook.

regarding programs for the faculty that increase our internal capacity for understanding diversity issues.

Hot off the presses: "The Committee for the Support of Teaching will hold a series of diversity workshops for faculty beginning Feb. 4 that will analyze case studies of controversial classroom situations in order to prevent such situations from arising in the future... ‘[The workshops are] going to deal with situations involving stereotyping people or lack of tolerance or controversial views being expressed that might be upsetting to people,' Dean of Arts and Sciences Adam Jaffe said[.] According to Jaffe, the workshops were not in any way inspired by the allegedly racist remarks made by Prof. Donald Hindley (POL) in his Latin American politics course last semester, even though one of the aims of this program is to ‘try to forestall situations happening where people feel harassed.'"

Jaffe and Krauss need to get their story straight.

I am saddened by the pain that our community has experienced recently and I want to open up channels for constructive dialogue.

If these channels are now closed, the situation at Brandeis must be pretty toxic, indeed.

The spirit and specifics of our current policy reflects thoughtful discussions between the faculty and university administrators.

Once again, the faculty have asked the Provost at least to follow the school's own policy, and not even this has happened.

I expect that such conversations will continue to inform this and other university policies in the future.

Sincerely,

Marty Wyngaarden Krauss

Provost and Senior Vice President for Academic Affairs