Few things are more important to faculty members than the right to free speech. However, new reporting requirements from the state of Michigan and fallout from dozens of state and national cases of sexual misconduct prompted a visit from NMU’s General Counsel Kurt McCamman to help review what conduct or speech could pose legal trouble for NMU employees and the entire university.
According to Janet Koski, Equal Opportunity Officer and Title IX Coordinator at Northern Michigan University, less than five percent of NMU’s 1,200 plus employees attended five sessions from October 29-31. During the sessions, McCamman highlighted boundaries for speech and conduct in and out conduct out of the classroom. He stressed the First Amendment and academic freedom must not be used to shield the abuse of a “captive audience” from racially or sexually derogatory epithets. Within the confines of the classroom, faculty members were advised to keep comments relevant to the subject. For example, repeatedly commenting on politics would in most cases be appropriate in a political science class but not necessarily in a math class. Faculty and staff learned that even making negative comments about the United States military could be used in a lawsuit if a member of the armed services files a discrimination suit under the Uniformed Services Employment and Reemployment Rights Act.
McCamman emphasized that whether comments or actions are considered harassment, discrimination, or retaliation is strongly dependent on context. And that context is created by the sum of our actions over many years, not just the immediate situation. “We create a record with every statement we make, every poster we have in our office, every video we show,” said McCamman. He said this record could potentially be used against a faculty member and the university if a student feels they were discriminated against. Professor Andy Poe (Mathematics and Computer Science) expressed concern that such an environment might cause faculty to be overly cautious with regard to speech in the classroom. “Asking us to restrict our lectures to the subject matter and not to refer, even casually, to current events (or other matters) may negatively affect our teaching more, perhaps, than is realized, inasmuch as a lot of us use our personalities as a teaching tool. Indeed, those of us who were on faculty during 9/11 may recall that on 9/12 we were encouraged to talk about current events in the classroom no matter our discipline,” said Poe.
Beyond the issues of free speech, McCamman’s presentation covered sexual misconduct. NMU policy is clear that even consensual relationships between supervisors and subordinates are not allowed. Furthermore, whether unwelcomed or nonconsensual conduct has occurred can sometimes come down to a matter of perception. English professor Kia Richmond attended the presentation and stressed the need for faculty to understand that students might perceive a situation quite differently than a professor. “We should regularly review NMU policies and remember that when positions of power are involved (e.g., professor with supervisory duties or responsible for a student’s grade), students might not be able to easily differentiate between a comment or a suggestion made and a requirement for an assignment or a grade,” said Richmond.
NMU-AAUP president Brent Graves also attended the session and strongly urges faculty members to avoid situations that could result in complaints of discrimination, harassment, or retaliation. “Mr. McCamman’s list of suggested dos and don’ts are excellent. I also emphasize that meeting behind a closed door with a student is likely to lead to problems. Even if someone is crying in your office, you are putting yourself at risk if you or a student shuts your door,” said Graves. Based on years of experience as a union officer, Graves strongly encourages faculty to avoid the following situations: 1) giving personal contact information to students; Graves said it is rare that they really need to phone, text, or email you via personal, rather than, work contacts. He added, this just doesn’t look good and can facilitate overstepping of professional boundaries; 2) meeting off campus in social situations, especially one-on-one; and 3) provide counseling about non-academic issues; you are almost certainly not qualified to act in that capacity, you may say the wrong thing, or your comments may be misinterpreted.
Graves said he has seen faculty lose their jobs and careers as a result of all of these situations. Mr. McCamman also emphasized that you can be personally sued for violations of discrimination/harassment/retaliation laws. “If you are simply accused, you are very likely to be banned from campus until investigations are completed. If allegations are deemed more credible than denials, you are likely to have your employment terminated. I may sound alarmist, but times have changed and all faculty would be wise to be careful and to protect themselves, as our society learns better ways to protect vulnerable individuals from acts of discrimination, harassment, and retaliation,” said Graves.
Slides from the Kurt McCamman’s presentation can be viewed by clicking here. The NMU-AAUP strongly advises you to review these slides for your own protection against legal activity.