Is UC Davis’ Investigation of Academic Freedom Case Fatally Flawed?

For months now, FIRE has followed the case of University of California, Davis School of Medicine professor Michael Wilkes, who has faced threats against his academic freedom for more than two years after he co-authored a controversial op-ed about prostate cancer testing in the San Francisco Chronicle in September 2010. As I noted previously on The Torch, the fight for Wilkes' academic freedom took a blow in January when an administrative review panel convened by UC Davis largely rejected the consensus of the UC Davis Academic Senate, which had determined that UC Davis had substantially violated Wilkes' academic freedom. Here's a brief summary of the case from that January entry:

Last spring, the Committee on Academic Freedom and Responsibility of the UC Davis Academic Senate found that the university had gravely violated Wilkes' academic freedom. UC Davis promised an investigation after the Senate passed a resolution unanimously calling on the university to apologize to Wilkes and retract all threats against him. Among other occurrences, Wilkes was informed in a letter from UC Davis Health System Counsel's David Levine that he could face legal liability for allegedly defamatory comments in the column. 

A more in-depth explanation of the facts of Wilkes' case can be read in this Torch entry from August 2012, and case materials can be examined here. 

As I noted in my last entry on Wilkes' case, while the Academic Senate's Committee on Academic Freedom and Responsibility (CAFR) found that UC Davis had egregiously violated Wilkes' right to academic freedom, the panel assembled by UC Davis to review CAFR's findings did not. The panel would only go so far as to say that a letter sent by the UC Davis Health System's general counsel—which CAFR found to have severely violated Wilkes' right to academic freedom and chilled his expression—was improper, agreeing that "a reasonable faculty member could interpret the letter as threatening." 

I wrote my previous entry with the expectation that more information would be forthcoming. After all, the findings issued by the panel are only two pages long and give very few indications of the depth of the investigation. Yet as Wilkes and Professor Gregory Pasternack (the CAFR chair at the time of its May 2012 report) have since confirmed to me, that's all we can expect. Nothing else will be released.

This is surprising because, on the face of things, there are serious and fundamental concerns with the panel's report. My focus here falls squarely on the panel's first—and most controversial—finding: 

Allegation: The Executive Associate Dean of the School of Medicine [Fred Meyers] sent an email threatening Professor Wilkes' teaching and administrative assignments as a retaliatory response to his opinion article.

Review Committee Finding: The Executive Associate Dean sent the email on September 30. The opinion article was published in print and online on October 1. Both Professor Wilkes's initial complaint and the CAFR report reversed the dates of these two events.

The panel's charge here—that CAFR got the timing of the article's publication wrong—is potentially significant. If UC Davis could not have read Wilkes' column before informing him of coming sanctions and changes to his employment status, Wilkes' charge of retaliation would be demonstrably weakened. 

However, the CAFR report extensively documented that the column had been available, and that it had been read. The timeline constructed by CAFR states: 

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.

[Emphasis added.]

Obviously, there is a disagreement between the review panel and CAFR about the timeline. Since UC Davis evidently does not keep sent emails for longer than a couple of weeks, it is difficult to determine who is right through technological means. CAFR's report states, though, that regardless of when the column actually appeared, Meyers admitted to having read the column shortly before emailing Wilkes. If this is true, how can the review panel possibly be right? What's more, CAFR's findings state that Meyers admitted to regretting sending this email: 

The Executive Associate Dean admits the disciplinary email was written after reading the article and characterized the email as "intemperate." The Executive Associate Dean agreed the email has an appearance of impropriety, based upon its close proximity to the timing of the article, even though he denies that the timing is connected. He characterized the email as "reflexive" and said if he had it to do over again, he would not have sent the email.

[Emphases added.]

The timing of this sequence of events, bolstered by the evidence CAFR marshalled with its investigation, was determined by CAFR to be "highly suspect beyond any reasonable doubt." And its investigation was much closer to the time in question than the administrative review panel's. Indeed, it's hard not to read CAFR's report and be convinced there is, at minimum, a strong implication of impropriety, to which Meyers as much as admitted that he had contributed. 

So what could explain the gulf between the two reports? The panel's findings state that the investigators "reviewed extensive documentation regarding the allegations described in the CAFR report." But did they, really? Pasternack informs me that CAFR was never asked to provide the panel with its raw investigative materials. Since only CAFR had the full trove of materials (and not the central senate office), it's hard to see how the review panel actually had access to all of the relevant files. Crucially, these files include the transcript of the interview CAFR had with Executive Associate Dean Meyers, summarized earlier.  

Pasternack is not currently serving on CAFR, his term as chair having ended in 2012. The current CAFR leadership, however, isn't buying the panel's findings either. In a brief published as part of the agenda for the senate Representative Assembly meeting (PDF), held Thursday, February 28, CAFR stated:

The administration appointed a three person committee to examine the Wilkes case on their behalf. The committee's report was provided with the letter from the Provost. There was only one new contention in the report; it called into question one piece of data in the CAFR report: the timing of one email threatening actions to be taken against Wilkes. Although put forward as a key issue, this is a secondary issue. Even assuming a revised timing of this email, the preponderance of evidence still supports the conclusions of the study conducted by CAFR last year and provided to the Representative Assembly, namely that the Medical School administration had impinged on the academic freedom of Michael Wilkes.

FIRE fully agrees, and we share CAFR's frustration at the apparent deficiencies of the UC Davis-appointed investigation. Far from being the thorough investigation the university promised nearly nine months ago, the fruits of the panel's labors—however much in good faith they were produced—amount to a get-out-of-jail-free card for UC Davis, and a raw deal for Michael Wilkes and the UC Davis faculty.