(Published on the web by the Canadian Association of University Teachers since September 1998, in the electronic archive of CAUT Bulletin; published by Kenneth Westhues, Professor of Sociology, University of Waterloo, since December 2004, as part of the Documentary History of the UW Ethics Committee, 1982-1998. Inquiries may be directed to [email protected])

Adjudicator Finds Flawed Procedures at Waterloo

(CAUT Bulletin, September 1998)

An adjudicator looking into the handling of a racism complaint against a university professor has made an important decision about academic freedom and the necessity for universities having and following good complaint procedures.

In June of 1997 Peter Mercer, vice-president administration and general council of the University of Western Ontario, was asked by President Downey of the University of Waterloo to investigate the handling of a complaint against sociology professor Ken Westhues and to adjudicate professor Westhues' appeal about disciplinary measures imposed by University of Waterloo vice-president academic and provost, James Kalbfleisch.

The University of Waterloo had disciplined professor Westhues following a complaint by a student in an undergraduate sociology course in 1996. The student alleged that he "made racist and unbalanced arguments regarding the theory of bio-politics," failed to define the meaning of such terms as "employment equity" and "affirmative action," and did not explain "the reasons why the state ... mandated such legislation." Further the student said that professor Westhues made comments in class that, among other things, made her feel humiliated, embarrassed and alienated.

Professor Mercer noted that a professor's statements are not unethical in the University of Waterloo policy "simply on the basis that one of the students felt uncomfortable; discomfort is often the result when any of us are challenged by ideas or opinions that clash with our own." He continued, "Expressions of opinion are sometimes offensive, even hurtful, but that is sometimes the price of guaranteeing the free expression of ideas in the university."

Professor Mercer warned about "a slippery slope where academic freedom of expression is censored in the name of countering racism." The importance of staying off this slippery slope requires that universities adopt good, fair policies for handling ethics and harassment complaints, and that they adhere to such procedures scrupulously.

Professor Mercer exonerated professor Westhues, and advised the University of Waterloo to take a close look at its procedures for handling complaints made by students about professors. He also made strong arguments for protecting academic freedom.

The student was offered the option of an attempt at informal settlement, but she declined, asking instead that her complaint have a formal hearing. As a result of that hearing, an internal ethics committee found against professor Westhues.

The university provost rejected the ethics committee's findings and found that there was no evidence professor Westhues made a racist statement, but imposed a discipline measure of one month's suspension without pay because of the way professor Westhues had defended himself against the complaint.

CAUT's Academic Freedom and Tenure Committee, in a letter to President Downey, expressed dismay at the way in which the complaint against professor Westhues had been handled by Provost Kalbfleisch. It spoke in strong terms about what it perceived to be a serious threat to academic freedom -- arguments echoed in the Mercer report.

Professor Mercer found that the policies of the University of Waterloo were flawed. "The University of Waterloo and its constituencies are not well served by some of its policies, especially policy 33 (the ethics policy) ... The university owes it to itself to take a good look at its policies." Quoting from an earlier CAUT Academic Freedom and Tenure Committee report on another matter involving professor Westhues, he noted that the CAUT committee had reached the same conclusion about policies at the University of Waterloo.

Professor Mercer found that the grounds for the student's allegations had never been provided to professor Westhues, and that the hearing committee established under Waterloo's policy 33 had erred in taking up the complaint when it had not been provided with any allegations that could be said to constitute a breach of Waterloo's policies.

The adjudicator also rejected the original complaint by the student against professor Westhues. "The mere use of the terms 'racist' and 'unbalanced' is insufficient. In the first place, on my reading of the university's policies, the expression of 'racist' or 'unbalanced' views per se would not constitute an offense however objectionable it might otherwise be. There is, in fact, no indication ... of how professor Westhues' behaviour can allegedly be characterized in these ways."

Professor Mercer also stated that the student's complaint that professor Westhues' s handling of the class had caused "undue stress, humiliation, embarrassment and feelings of alienation" did not establish grounds for a complaint to the ethics committee. There should have been some grounds for believing that professor Westhues had behaved in a gratuitously offensive way before a formal hearing under policy 33 was convened. Professor Mercer found no evidence to establish such grounds.

Professor Mercer also stated that the ethics committee had failed to attempt "every reasonable effort to resolve the matter informally," as required under policy 33. In fact, the ethics committee proceeded to a formal hearing immediately on receiving the student's request.

Professor Westhues submitted a lengthy written statement to the hearing committee, but refused to stay through a preliminary hearing because he did not believe that the committee was following its own procedures, and because he did not trust himself to maintain his composure during the meeting. Instead he left a representative provided by the University of Waterloo Faculty Association to speak for him at the hearing. Given the failure of the hearing committee to ensure that grounds for the complaint were provided, and its failure to attempt an informal resolution of the matter, professor Mercer concluded in his report that professor Westhues was not obliged to cooperate with the committee by attending its meetings.

Ironically, it was this failure to attend the committee hearing that led the university provost to discipline professor Westhues, even though the provost had himself rejected the report of the ethics committee because it failed to establish any grounds for the student complaint. The provost also took professor Westhues to task for allegedly violating the student's confidentiality, charges that the adjudicator also dismissed.

Professor Mercer went further with his criticisms of Waterloo's handling of the case, pointing out among other things that Waterloo does not even have a policy on discipline that establishes the authority of the provost to impose discipline in the first place, much less a serious sanction amounting to a fine of several thousand dollars. Professor Mercer also found the provost had erred in failing to provide professor Westhues an opportunity to respond before imposing this sanction.

In the end, professor Mercer concluded that the discipline imposed on professor Westhues was unwarranted, and he cancelled the suspension without pay, awarded reimbursement of his legal expenses, and also awarded professor Westhues a six-month research leave with full pay.

(Article supplied by the CAUT Academic Freedom and Tenure Committee)