As we report in today’s press release, Brandeis University declared a professor guilty of racial harassment and placed a monitor in his classes after he discussed the use of the word "wetbacks" in his Latin American Politics course. Professor Donald Hindley, who has been teaching at Brandeis for nearly 50 years, had never faced a student complaint until fall 2007. But a deeply flawed investigation—proceeding in violation of Brandeis’s own policies—has deeply violated Hindley’s rights, misinterpreted the definition of harassment, and misinterpreted Hindley’s own statements in class.
Despite Hindley’s repeated requests to Brandeis administrators to disclose in writing precisely what offended some students in his class, they have refused to do so. According to Hindley, he explained to his class that Mexican migrants in the United States are sometimes referred to pejoratively as "wetbacks." That’s actually a statement against an ethnocentric use of the term. But according to Brandeis’s Provost, Marty Krauss, even the use of such an epithet in this context constitutes racial harassment. This unreasonable definition of harassment would ban such language as jokes and epithets even when the basic elements of harassment are not present. Furthermore, Krauss has suggested that the burden is on Hindley to prove that his statements in class were relevant to his teaching.
These are serious abuses of Hindley’s academic freedom, and Brandeis should be ashamed. But you don’t have to believe me; you can read the scathing reports of Brandeis’s own Committee on Faculty Rights and Responsibilities. You can read the unanimous resolution of Brandeis’s own Faculty Senate. And you can read what faculty and others are saying in Brandeis’s student newspapers.
Although Brandeis’s discrimination policy directs administrators to attempt to mediate a conflict when a student complains, the single student complaint was passed forward from one administrator to the next. After a weeks-long investigation, Hindley was called to an October 22 interrogation without having been alerted to the nature of the complaint. The investigating officer, Jesse Simone, submitted her report to Provost Krauss the next day without having given Hindley a chance to make final comments and clarifications—a right promised to faculty by Brandeis’s own policies.
On October 30, investigator Jesse Simone informed Hindley that he was guilty of making "statements in class that were inappropriate, racial, and discriminatory" and that this "conduct" violated Brandeis’s "Non-Discrimination and Harassment Policy." Krauss sent Hindley a letter the same day, notifying him that "The University will not tolerate inappropriate, racial and discriminatory conduct by members of its faculty." Krauss ordered a monitor to observe Hindley’s classroom activities until Krauss determined he was "able to conduct [himself] appropriately in the classroom." Krauss added, "I sincerely hope that you will recognize the seriousness of this matter and take affirmative steps to correct your conduct. Failure to do so may result in further disciplinary action up to, and including, termination."
Hindley appealed the university’s precipitous decision to Brandeis’s Committee on Faculty Rights and Responsibilities (CFRR). This appeal, according to the Faculty Handbook, should have suspended the classroom monitoring immediately, but Krauss refused to withdraw the monitor for the remainder of the semester.
Brandeis’s Faculty Senate met in an emergency session about Hindley’s case on November 8. In a unanimous resolution, the Faculty Senate said it was "seriously concerned about procedures" in his case, such as Brandeis’s failure to attempt to resolve it "in an ‘informal manner’ with ‘flexible’ solutions."
The CFRR also issued a withering report on Hindley’s case on November 29. The Committee unanimously concluded that the Provost’s decision should have been withdrawn "because of multiple and fatal flaws," both procedural and substantive. The Committee faulted administrators for failing to apply a clear or defensible definition of harassment, for placing an untrained monitor in Hindley’s classroom without clear guidelines about what the monitor would be trying to detect, and for failing to follow university procedures, thereby violating Hindley’s rights to fair treatment and academic freedom.
Krauss, however, challenged the Committee’s jurisdiction, prompting the Committee to write in scathing words on December 10:
1) The Provost continues to impose unilateral limits on the authority of our Committee, based on her own reading of faculty rules.
2) Her reading of those rules directly contradicts the considered interpretations reached by our Committee, interpretations that were clearly communicated to her in early November. Her actions simply ignore our power to interpret the Faculty Handbook …
In a December 19 supplementary ruling and related memo, the Committee strongly attacked Krauss for straining the definition of harassment and for suggesting that the burden was on Hindley to prove the relevance of his classroom statements.
Although FIRE wrote to Brandeis University President Jehuda Reinharz on December 12, we have not yet received a response. Instead, Krauss unilaterally sent Hindley a letter on January 7, trying to sweep the matter under the rug—still no hearing, no apology, no admission of the egregious procedural errors, and no suggestion that Brandeis had utterly failed to respect the faculty’s fundamental rights. This letter suggested that Hindley was the one who had learned or still needed to learn a lesson.
As we state in our press release, FIRE will pursue this matter until Brandeis comes around. Brandeis should start by apologizing to Professor Hindley, withdrawing the Provost’s decision, clarifying its harassment policies and procedures, and actually following them—as Brandeis’s own faculty have demanded. What a sad legacy of Supreme Court Justice and free speech champion Louis Brandeis.