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U. of Denver Hides Behind Title IX to Justify Persecution of Veteran Professor

Throughout the maddening case of veteran University of Denver (DU) Professor Arthur Gilbert, the DU administration has employed a "trust us" defense when questioned about its repeated, well-documented violations of Gilbert's rights to free speech, academic freedom, and due process. Gilbert was suspended from the DU campus for more than 100 days and found guilty of sexual harassment based on the content of his graduate-course lectures. DU has refused to consider the academic context of the case over the objections of FIRE, DU's Faculty Review Committee, the American Association of University Professors (both the national organization and the DU chapter), and DU's Faculty Senate, which in May 2012 decisively passed a resolution calling on DU to vacate its finding of sexual harassment against Gilbert.

I blogged most recently about Gilbert's ordeal in November, after The Clarion, DU's student newspaper, was prompted to write an article on the case by FIRE President Greg Lukianoff's Unlearning Liberty: Campus Censorship and the End of American Debate. For that article, DU Provost Gregg Kvistad would only comment that "this case is much more complicated than what the author describes." I wrote that he should be glad Unlearning Liberty didn't spend more time on DU's treatment of Gilbert.

I further noted that at the DU Faculty Senate's October 26, 2012, meeting, Kvistad rejected the Senate's call for the university to vacate the finding of sexual harassment against Gilbert. As the DU AAUP chapter had reported, "The Provost said that he ‘could no more vacate the finding of sexual harassment than he could change the score of a hockey game.'" This is an insultingly false notion, if accurately reported, and one almost certainly at odds with DU's policies and the powers granted to its executive officers. Further, DU's contention here perversely contradicts our most basic conceptions of justice and fairness, which certainly include the ability of a justice system (whether in the campus setting or elsewhere) to exonerate persons wrongly found guilty of an offense. It's no secret that university disciplinary systems make mistakes; FIRE has corrected them dozens of times when they have done so over the years. Any notion that DU's hands are simply tied when it comes to vacating Gilbert's sanctions is bogus.

The minutes of the October 26 meeting (PDF) are now available online, and while Kvistad's woeful "hockey game" line is not to be found, the discussion concerning DU's response to the Senate's resolution is illuminating and deeply concerning. Here's the relevant section:

Responses to Questions and Additional Comments:


Dean Saitta asked: "What is the response to the Arthur Gilbert motion passed by the Senate last May?"-DU is subject to Title IX. We usually think about this in the context of athletics, but there are many other provisions including some regarding matters such as discrimination and harassment. When a sexual harassment charge is made it must be referred to the Office of Equal Opportunity. The OEO performs an initial investigation. This initial investigation must meet Title IX requirements. Title IX mandates subsequent investigations and steps depending on the outcome of the initial OEO investigation. I cannot change this.

Regarding last spring's Senate vote: I am surprised the Senate vote was taken when the available information was so limited. I know all aspects of the case and it is not simple. We would put our financial situation at risk if we did not carefully follow our processes. I am open to process changes regarding such matters. We could have more faculty involvement, but extensive training would be required.

The "OEO" investigation refers to the investigation conducted in 2011 by DU's Office of Diversity and Equal Opportunity, which found that Gilbert "more likely than not" (with significant qualifications explained later) created a hostile sexual environment in his class.

Title IX, which forbids educational institutions from discriminating on the basis of sex, requires that federally-funded universities (that is, nearly all private and public universities in the United States) take active measures to prevent and combat gender-based discrimination, including sexual harassment. It is DU's duty to take this responsibility seriously. I have no reason to suspect that the OEO investigation failed to comply with DU's obligations under Title IX. However, OEO made clear that academic considerations were beyond the scope of its investigation, and stated that those questions were to be evaluated by the proper offices. As OEO stated in its determination letter regarding its findings: "Whether this is justified by the academic integrity of your teaching of the subject matter is beyond the scope of this investigation and will be determined by the appropriate academic decision makers."

In light of OEO's qualified analysis, Kvistad's "Title IX made us do it" defense is particularly grating. Note Kvistad's response, as provided in the minutes, that "Title IX mandates subsequent investigations and steps depending on the outcome of the initial OEO investigation." Note also OEO's qualification that academic considerations would "be determined by the appropriate academic decision makers." Yet to date the DU administration has made no efforts to evaluate the academic context of the case, despite OEO's explicit counsel that it do so. If anything, Kvistad's defense to the Senate confirms what has long been clear to FIRE, the AAUP, and the DU faculty: that DU neglected its duty to fairly prosecute the charge against Gilbert.

Kvistad's invocation of Title IX, then, is both disingenuous and dangerous. Its deployment as a code word to justify in a single stroke DU's repeated violations of Professor Gilbert's rights makes a mockery of due process-not to mention of Title IX itself, which is intended to address true gender-based discrimination and to quickly and effectively remedy such discrimination. Most disappointingly, rather than allow himself to be held accountable by the DU Faculty Senate, Kvistad admonished them for thinking they had any ability to challenge DU's authoritarian actions. The message to DU faculty is clear: Not only should Arthur Gilbert not expect justice in his case, but any DU faculty members who may find themselves in a similar place should expect the same treatment.

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