FIRE Letter to Binghamton University President Lois B. DeFleur

December 11, 2009

Lois B. DeFleur
President, Binghamton University
Office of the President
P.O. Box 6000
Binghamton, New York 13902-6000

URGENT

Sent via U.S. Mail and Facsimile (607-777-2533)

Dear President DeFleur:

The Foundation for Individual Rights in Education (FIRE) is disappointed to be writing you once again about violations of the rights of a student in the Department of Social Work at Binghamton University (BU). FIRE last wrote you on October 29, 2008, after the department punished Master in Social Work (MSW) student Andre Massena for his protected speech. Today, FIRE is concerned about the threats to freedom of expression, academic freedom, and due process posed by the department's expulsion of MSW student Michael Gutsell. (His appeal is pending.)

It appears that the department has chosen to magnify and punish recent incidents of classroom speech and other departmental speech (not behavior) by Gutsell far in excess of how similarly situated students would be treated by reasonable persons. This is our understanding of the facts. Please inform us if you believe we are in error or have incomplete information.

First, according to Gutsell, on January 23, 2009, he e-mailed the department secretary, Amy Edwards, thanking her for her help in registering for courses in Spring 2009. The e-mail read in relevant part: "Thank you again for all your hard on helping me with this," which was quite obviously missing the word "work" after the word "hard." This innocent typo became a matter of investigation. According to Gutsell, Edwards sent the e-mail to Department Chair Laura Bronstein, who then communicated the concern to BU's medical center.

Then, on September 8, 2009, Bronstein met with Gutsell to discuss extra terms and conditions that he would have to meet in order to be allowed to continue in the program. According to Gutsell, they met again on September 15, and Bronstein "spent approximately 10 minutes trying to talk me into dropping out of the program." Having been unsuccessful, Bronstein then drew up a contract for Gutsell to sign. It included the following strange, overbroad provision as an area of "academic performance":

Evidence of ability to build and maintain rapport with peers, instructors, colleagues and clients – No reports from instructors or students that they are uncomfortable with you [boldface added]

This provision apparently put Gutsell's future in the hands of the most oversensitive person in the program, since a single report from another student would be enough to violate Gutsell's contract.

According to a November 24 statement that Gutsell submitted to the university's Office of Student Conduct, on October 27 Professor Kevin Murphy deceived the students in his class into thinking that they had to work together in order to reach a unanimous decision about the content of their midterm assignment. In reality, after they reached a decision, Murphy told them that the exercise itself had been their midterm. According to Gutsell, students felt amused but also deceived. Murphy said, "I just hope nobody comes after me after class or anything," and Gutsell in response, "laughing and smiling, jokingly said ‘Well just be careful when you start your car.'" At the time, no one appeared to take the statement in any way as hostile or threatening, and the matter was not brought up for several weeks.

Then, on November 17, according to the same statement, Murphy's class was discussing "the issue of the docking of employee pay for infractions." Gutsell mentioned that in Ontario, Canada, where he once worked,

it is illegal for an employer to dock pay unless the law has been violated. I proceeded to tell a story about an incident that happened to me many years ago [in 2002] when I was living in Ottawa. I said that an employer had tried to dock my pay for taking a pick-axe to a chair. It was my pick-axe but they couldn't prove it was me so they were unable to dock my pay legally. I noticed some negative reactions from classmates about the story and questioned [myself] whether I should explain the full story but did not want to disrupt the flow of conversation which had progressed on to other topics.

According to Gutsell's statement, the truth was that Gutsell had not been the person who had put the hole in the chair so many years earlier, but his employer had docked his pay. When Gutsell notified his employer, the employer restored the docked pay. Gutsell's story was on the exact topic being discussed in Murphy's class.

This entirely innocent story led some students to claim that they had become afraid of Gutsell. After they expressed their concerns to Murphy and Edwards, Edwards called the campus police (the New York State University Police). This call generated a November 20 interview with Gutsell by the campus police. According to the associated police report, Edwards also was interviewed. She reportedly said that Gutsell was told by the department that he could no longer go to class, that "students are afraid to return to class," and that "the Social Work [Department] is currently working to remove Gutsell." According to a November 24 interview with the police, however, Murphy acknowledged that "the story about the pickaxe was relevant to the conversation at the time" and added that "Gutsell has not shown the agitation and odd mannerisms described in previous reports."

Gutsell met with the department's Advancement Committee on December 1 and was told, for the first time, most or all of the various allegations that were being used against him. This apparently was his one and only hearing prior to his expulsion. On December 4, he received a letter from Assistant Professor Cassandra Bransford, Advancement Committee Chair, telling him that the committee had recommended Gutsell's expulsion.

The December 4 letter did not state a single specific utterance for which Gutsell was being expelled. Instead, Bransford referred to "ongoing verbal interactions with you that were perceived by [others] as hostile, threatening, and potentially violent." Bransford noted the strange September 2009 contract element regarding "rapport" and noted that "there continues to be a significant discrepancy, at times, between the purported intention of your verbal behavior and the ways in which your communications are perceived by others." The letter also suggested that the ban against Bransford going to class remained in place, despite the clear finding of the police that there was no reason to fear for anyone's safety. Finally, on December 7, Bronstein wrote a letter to Gutsell telling him that she had accepted the recommendation of the "social work advancement committee" and that Gutsell was being expelled after the conclusion of the semester.

FIRE understands that Gutsell submitted a timely appeal on December 10.

This sequence of events is unacceptable for several reasons:

1. None of the utterances above constitutes an offense worthy of expulsion or exclusion from class; indeed, none of them is even an offense. None of them led to any disciplinary charges against Gutsell.

2. Taken together, what emerges from these utterances is not a picture of Gutsell as hostile and threatening, but at worst a series of misunderstandings based on subjective overreactions to innocent, relevant classroom speech. FIRE's experience with this particular department of social work in the Massena case has fully shaken our confidence that the department's assessments are fair and respect students' rights.

3. According to the November 20 interview with Gutsell in the police report, Gutsell told the interviewer that he had been diagnosed with a "condition" in 2008 but that "he no longer suffers from the condition." According to Bransford's December 4 letter, the condition in 2008 led to Gutsell agreeing to "work on hostile and angry behaviors." It appears that the 2008 situation has been consistently used to treat Gutsell's classroom and departmental speech with a higher degree of suspicion than the speech of other students. While discrimination in the area of past or present medical disability is not a matter within FIRE's purview, it bears wondering whether Gutsell's medical experience in 2008 is now being used against him and whether the same utterances by other students would really lead to expulsion.

4. Gutsell still does not know precisely which utterances have been used against him, and the December 1 meeting provided him virtually no time to prepare a defense regarding utterances which, in some cases, he was learning were considered expellable offenses for the first time. The December 1 hearing apparently covered his entire set of utterances since entering the program.

5. Bronstein's requirement that Gutsell maintain full "rapport" with all others in the program set an unacceptably high burden, as though somehow all people in the department are supposed to get along all the time without misunderstandings or complaints. Bronstein's conditioned Gutsell's advancement in the program on "No reports from instructors or students that they are uncomfortable with you" (emphasis added). No exception was made for untrue, unsupported, or unreasonable reports.

Surely you need no reminder that BU, a public university, is both morally and legally obligated to respect the rights enshrined in the United States Constitution. As the Supreme Court declared—and as I am sure you will agree—"[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas.'" Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted). That marketplace cannot function when students must fear telling true, relevant stories about past personal events in classrooms when they are encouraged to do so. Nor can that marketplace function when students must fear that innocent classroom comments will be stored away to be used against them later in expulsion proceedings.

FIRE requests that BU immediately terminate its violations of Gutsell's constitutional rights and permit Gutsell to progress normally in the program without undue restrictions. If the department insists that Gutsell is not suited to receive the MSW and become a credentialed social worker, FIRE asks that you solicit an independent, unbiased review. We have included a signed FERPA waiver from Michael Gutsell, which permits you and others at BU to freely and fully discuss his case with FIRE.

We request a response regarding these urgent matters so that Gutsell may return to class next semester. Please respond by December 29, 2009.

Sincerely,

Adam Kissel

Director, Individual Rights Defense Program

cc:

Patricia W. Ingraham, Founding Dean, College of Community and Public Affairs, Binghamton University

Laura Bronstein, Chair, Department of Social Work, Binghamton University

Diane Wiener, Assistant Professor, Department of Social Work, Binghamton University

Sunha Choi, Assistant Professor, Department of Social Work, Binghamton University

Cassandra Bransford, Advancement Committee Chair, Department of Social Work, Binghamton University

Kevin Murphy, Professor, Department of Social Work, Binghamton University

Encl.