(Published on the web by the University of Waterloo administration from February 1998 to spring 2003, and by Kenneth Westhues, Professor of Sociology, University of Waterloo, since July 2003, as part of the Documentary History of the UW Ethics Committee, 1982-1998. Inquiries may be directed to kwesthue@uwaterloo.ca)

 

IN THE MATTER OF AN APPEAL
BY Professor Kenneth Westhues under University Waterloo Policy 33 from the decision of the Vice-President Academic & Provost, Dr. James Kalbfleisch, dated March 11, 1997, arising out of the report of the Ethics Committee, dated August 23, 1996.

REASONS FOR DECISION

ADJUDICATOR: Dr. Peter P. Mercer
Vice-President (Administration) and General Counsel
The University of Western Ontario

November 24, 1997

INTRODUCTION


This decision is in respect of an appeal nominally brought under University Policy 33 by Professor Kenneth Westhues against a decision of Dr. J ames Kalbfleisch, the Vice President Academic and Provost. That decision, conveyed in a Confidential Memorandum dated 11 March 1997, was made pursuant to a Report of the Ethics Committee, dated 23 August 1996. That Report dealt with allegations, made by a student in one of Professor Westhues' Sociology classes, that he had made "racist and unbalanced" statements concerning slavery, racism and employment equity and had conducted a class discussion in a manner that caused her "undue stress, humiliation, and embarrassment". As a result, the student alleged, she felt alienated and was reduced to a state where she "(could) not function properly because of the racist overtones articulated".

The Hearing Committee's conclusion and recommendations and Dr. Kalbfleisch'. determination of whether to accept the report and implement its recommendations, are described in his confidential memorandum to the parties:

The Hearing Committee concluded in its Report that there was substance to [the student] R's complaint and that W had been insensitive in dealing with her concerns. They recommended that W be required to take counselling, to write letters of apology, and to attend a workshop on "Smart Strategies for a Safe Open Classroom". In their view, a formal report and sanctions could likely have been avoided if W had been able to deal more sensitively with R's concerns, either when she talked with him outside the class or at the first meeting of the Hearing Committee.

Response to Hearing Committee Report

As specified in Policy 33, the Hearing Committee Report was submitted to me as Vice President Academic and Provost. It is my responsibility to decide whether to accept the Report and implement its recommendations. No one who reads the Report will doubt that R was genuinely concerned by the classroom discussions referred to above. W, on the other hand, appears in the Report to be callous and insensitive -- more interested in selfjustification and self-protection than in dealing with the real concerns of one of his students.

The Report does not, however, present a compelling argument that W has violated Policy 33. The two statements he is alleged to have made are not, in themselves, beyond the bounds of what must be tolerated in classroom discussions of controversial issues. The Report fails to provide the context that would enable one to judge whether the statements "lack any redeeming artistic, intellectual or literary merit" (Policy 33, Section 11 b.2).

The Report's recommended sanctions are also problematic. In my experience, forcing letters of apology from someone who is not sorry can do more harm than good. Nor is counseling likely to be of benefit unless the individual recognizes the need for help and seeks it voluntarily.

Consequently, I have decided not to implement the recommendations in the Ethics Committee Report.

Matters Requiring discipline

There are nonetheless at least three matters arising from the Ethics complaint and subsequent events that warrant discipline.

1.W refused to co-operate with the Hearing Committee duly constituted under U.W. Policy 33 to hear R's complaint. This is unacceptable.

2. W and his colleague Professor Dubinski (now retired) circulated confidential documents identifying R. This is unacceptable.

3. Subsequent to the hearings, W copyrighted and published a pamphlet entitled "The Risks of Personal Injury in Liberal Education". In this pamphlet he quoted verbatim from a letter sent to him by R, despite her clear instruction that the material was to remain private and confidential was not to be revealed either directly or indirectly. Although R is not named in the pamphlet, another student recognized her situation and brought the quote to her attention. I consider this to be highly offensive and unacceptable behaviour on the part of W.

Discipline

I have decided to suspend Professor Westhues for one month without pay, the suspension to occur during his next non-teaching term. Under Policy 33, either party may appeal this decision to the President within three weeks.

My role in this matter was defined in President Downey's letter to me of 11 June 1997, confirming that I would act in his stead to hear and determine the appeal by Professor Kenneth Westhues. President Downey's request that I do so occurred in response to a concern raised in Professor Westhues' letter to him of 2 April 1997. Towards the end of that detailed eight page letter, in which Professor Westhues sets out his formal written appeal of Dr. Kalbfleisch's decision, he states "[t]his record raises the question of whether you can fairly conduct the Administrative Review the present letter requests, that is, whether you will be able to consider the present letter impartially, without bias or the apprehension of bias". In his letter of reply to Professor Westhues, also dated 11 June 1997, President Downey stated "I do not accept that these matters would preclude me from properly dealing with an appeal under Policy 33". However, he went on to say that he preferred to see the matter settled as expeditiously as possible and therefore appointed me to determine the matter, agreeing to be bound by my determination.

President Downey's letter to me of 11 June 1997 enclosed copies of the Ethics Committee Report dated 23 August 1996, Dr. Kalbfleisch's memorandum of 11 March 1997, a letter from Professor Westhues to Dr. Kalbfleisch dated 12 March 1997, a letter from Professor Westhues to President Downey dated 2 April 1997, and a copy of the book of Policies and Procedures of the University of Waterloo. My terms of reference were described by President Downey in his letter as follows:

I shall rely on you to determine the procedures you wish to adopt in dealing with the appeal, subject to an understanding that Professor Westhues will, at least, be given an opportunity to make submissions to you, orally or in writing, as you may choose, in connection with all the matters raised in his letter to me of April 2, 1997.

The matters raised in Professor Westhues' letter of 2 April 1997 are introduced in the third paragraph:

In this instance, the Provost has sailed into uncharted waters, grabbing power to which no policy entitles him and then wielding it to do me unwarranted harm. His accusations, procedures and penalty do not fit any standard categories. A measured response from me involves first exposing the lawlessness of his incursion on my salary, then requesting corrective action by higher University authority, not just to save myself from unjust punishment but to strengthen on our campus a climate of reason, lawfulness, and respect for the classic principles of academic life. I offer my response under the following nine headings:
(1) The Provost's disposition of Ethics Report 96-1;
(2) The Provost's further actions in light of University Policy;
(3) His first accusation, refusing to co-operate;
(4) His second accusation, circulating confidential documents identifying R;
(5) His third accusation, copyrighting and publishing a pamphlet;
(6))His comment about counselling;
(7) Basic outcome requested of the administrative review;
(8) Need for an inquiry;
(9) The handling of the present request.

On page 6 of his 2 April 1997 letter to President Downey, Professor Westhues states that Ethics Proceeding 96-1 "did not take place in isolation" but "was an extension of Ethics Proceeding 94-3". He then lists 13 of the "more obvious continuities between the two Ethics Proceedings". Professor Westhues' statement of the need for an inquiry follows on page 7 of his letter:

No reasonable person could study these continuities, especially against the background of other unusual restrictions and punishments imposed on me during this period, and see nothing more than routine administration of University policies. On the contrary, any reasonable person would suspect that the ethics policy in this case may have been ferried into waters beyond the map of policy and used for the unauthorized purpose of harassing a professor whose teaching threatens certain established interests.
The University owes it to itself to try to get to the bottom of these proceedings: to hold a full, public, external, independent, impartial inquiry into the official actions taken against me in relation to Policy 33. So that the inquiry may be a learning experience of benefit to all, it should be sponsored jointly by the University and C.A.U.T. conducted by scholars of some stature, and guided by procedures and terms of reference clearly spelled out in advance. I would give such an inquiry my full co-operation.

I met first with Professor Westhues on 11 July 1997, and subsequently with Dr. Kalbfleisch on 21 July 1997 in order to determine whether there were other documents they wished to provide to me and to inquire about how they wished to proceed. Professor Westhues provided me with a large number of documents, numbering over eleven hundred pages, which are listed in Appendix II to this decision. By agreement of both parties, I then conducted a hearing on August 7, 1997 at which they each presented their arguments, asked questions of each other and gave me the opportunity to ask questions of them. Nobody else was present at the Hearing and I tape recorded the proceedings in order to produce the written transcript which is provided as Appendix I to this decision.

By way of further introduction to the documents that he submitted at our meeting of 11 July 1997, Professor Westhues also provided me with a three page letter. That letter to me, also dated 11 July 1997, reads as follows:

In his letter to you of 11 June, President Downey wrote that I should be given opportunity to make submissions to you "in connection with all the matters raised" in my letter to him of 2 April. These matters fall into five categories: four actions taken ag ainst me by administrative authorities subordinate to the University President, and the matter of appropriate remedy.
. . .

Beginning with the most recent, the four actions taken against me are as follows.

1. Sections 2-7 of my letter address the matter of the final two sections of the Provost's memo of 11 March 1997, wherein he imposes the suspension without pay. For the reasons outlined in my letter and in the documentation from Ethics Hearing 96-1 submitted herewith, l ask you to quash the Provost's accusations and penalty.

2. Section 1 of my letter addresses the matter of Ethics Hearing 96-1. For the reasons offered to the hearing committee both by me and by the FAUW AF&T Committee on my behalf, as provided in the documentation submitted herewith, l ask you to quash the report of Ethics Hearing 96-1. I realize that the Provost has already rejected the report in the second section of his memo of 11 March, but his language includes gratuitous innuendo about me that is unsupported by evidence. I therefore ask that you quash the report of Ethics Hearing 96-1 unequivocally.

3. Section 8 of my letter addresses the matter of Ethics Hearing 94-3. I submit herewith a cerlox-bound volume of documentation from the hearing, as well as the letters President Downey received from recipients of my letter of 15 March 1994 to Professor Gail Grant -- these latter are evidence that my letter to Professor Grant was not intended to damage Professor Nelson's reputation and had no such effect. On the basis of this evidence (systematically outlined in my "Twenty Flaws" statement near the end of the volume), I ask you to quash the report of Ethics Hearing 94-3.

4. Sections 8 and 9 of my letter address the matter of "other unusual restrictions and punishments imposed on me during this period," which are intimately bound up with the substance of Ethics Hearing 94-3. I grieved the restrictions and punishments under UW Policy 63, but my grievance was not heard. I submit herewith the documentation from the aborted hearing, and the two volumes of evidence ("Detailed Response ..." and "Specific Objections...") I had prepared for it. On the basis of this evidence, l ask you to quash the restrictions and punishments imposed by the department chair in letters dated 10 and 17 December 1993, and 14 February and 14 March 1994.

I indicated in my letter of 2 April that I was delaying comment on the matter of appropriate remedies, beyond the obvious one of overturning the suspension without pay. The damages I have suffered as a result of the actions taken against me are as follows:
1 .A three-year interruption (1994 to 1997) of my work with graduate students;
2. Unsatisfactory merit rating for 1993, with attendant financial penalty;
3. Letter of reprimand in my departmental file since February 1994;
4. The humiliation of the forced public apology of June 1994;
5. Severe damage to my own and my family's reputation by the University's publication world-wide on the Internet of the apology, the Provost's open letter, and the report of Ethics< Hearing 94-3 from June 1994 to the present, and of the department chair's 60-page document from November 1996 to the present -- I have evidence of such damage among my students and colleagues at this University, among colleagues elsewhere in Canada, also in the United States and Europe, among my relatives in the United States, among the police officers, social workers, and community developers with whom I collaborate in the local community, as well as among the students and colleagues of my wife, Anne Westhues, a professor at Wilfrid Laurier University;
6. Costs for legal counsel of $3700.14;
7. Severe curtailment of my research and writing over the past 42 months, on the one hand by the ethics committee's harassment of me and on the other hand by the inability of my department, the grievance panel, and higher-level administrators to address my grievances according to University policy and standard academic norms;
8. Further damage to my reputation among undergraduate students here by the ethics committee's letter and telephone calls to them in the summer of 1996.

. . .

In this case ... the wrongful actions have been multiple, have extended over a period of 42 months, and defamations have been broadcast world-wide for three years. In addition (cerloxbound volume enclosed), the wrongful actions were maintained through at least eight distinct attempts at mediation, with each of which I cooperated fully, but all of which were rejected by those intent on punishing me. Nonetheless, the remedies I ask of you (beyond overturning the suspension without pay) are essentially the same as set down a year before Ethics Hearing 96-1 commenced, in my submission to CAUT dated 13 February 1995:
1. A special research leave of one year with full pay, in terms of Section l.C. of UW Policy 3.
2. Reimbursement of my legal expenses upon my presentation of receipts to the University Secretary;
3. Re-assessment by the Dean of Arts (or by a committee he may appoint), in light of your decision, of my annual performance reviews for 1993 and subsequent years, with corresponding salary adjustment.
4. Full publication of your decision by the University in the UW Gazette and indefinitely on UWlnfo, with the same prominence as given to the documents already there. I ask also that your decision be sent by mail to the students contacted by the ethics committee in 1996.

DECISION

My decision on the merits of this case is that the Provost's proposed suspension of Professor Westhues for one month without pay cannot stand. The Provost himself declined to accept the recommendation of the Ethics Committee set out in its 96-1 Report. I believe his decision was correct and I discuss below some difficult aspects of the hearing process followed by the Ethics Committee and of the substantive provisions of Policy 33. Indeed, l believe a number of difficulties in this case might have been avoided if the relevant policies were changed and I make suggestions about such changes in a separate memorandum to President Downey.

In his March 11, 1997 memorandum concerning the Report of the Ethics Hearing Committee, the Provost concludes that there were "nonetheless, at least three matters arising from the Ethics Complaint and subsequent events that warrant discipline". During the hearing that I conducted on August 7, 1997, the Provost described his authority to impose disciplinary sanction in these circumstances as delegated authority from the President who in turn has it delegated from the Board of Governors of the University. There is in fact no policy at the University of Waterloo on discipline, save under Policy 53 dealing with dismissal of a tenured faculty member, and so the Provost ultimately points to his position as the Chief Operating Officer of the University as the source of his delegated authority to impose discipline.

Certainly there is no express or implied grant of authority to the Provost to improve such sanctions pursuant to Policy 33. This is clear from a complete reading of the Remedies section of the Policy, which begins as follows:

III. Remedies
The aim of this Policy is to implement Sections I. and 11. above by providing access to appropriate remedies for those injured by violation of the principles stated. While this Policy is designed especially for those who believe themselves injured (by violation of the Policy) and who seek redress, it is assumed that those with academic or employment supervisory authority who detect what they believe to be violations of the Policy will act promptly to provide or initiate the appropriate remedial or disciplinary measures as set out in this and other University policies and procedures (including Policies 11, 18, 36, 53, 63 and the Academic Regulations & Student Discipline policy approved by Senate). (p 63, emphasis mine)

None of the Policies specifically mentioned (11 - Faculty Salaries, 18 - Staff Employment, 36 - Staff Grievances, 53 - Faculty Appointments/Tenure, 63 - Faculty Grievances), or any others on my reading of them, can be said to authorize the disciplinary measure sought to be imposed by the Provost. Such authority could otherwise only be found as inhering somehow in the office of Provost.

While I can well see the need and justification for the Provost of the University to be able to assert some inherent authority to impose discipline in the absence of any disciplinary policy, there are procedural and substantive reasons why such inherent authority does not justify the disciplinary sanctions sought to be imposed in this case. The Provost explicitly stated his decision not to implement the recommendations set out in the Ethics Committee Report; procedural fairness precludes him from then identifying three matters arising from the Ethics Complaint and subsequent events and simply determining that they warrant discipline especially when that discipline, in effect, amounts to a fine of several thousand dollars. A necessary prerequisite to the determination of whether to impose such a strong disciplinary measure, even where the authority to do so was well established, would be to give the opportunity to Professor Westhues to present his side of the story. The fact that Professor Westhues did not participate in the Ethics Committee hearings cannot amount to some kind of waiver in this respect and the subsequent failure to accord him any right of response before making the decision to suspend him must itself be seen as a vitiating error.

I also conclude, on the evidence before me, that the substance of the three matters identified by the Provost does not warrant the imposition of discipline.

1. W. refused to cooperate with the Hearing Committee duly constituted under UW Policy 33 to hear R's complaint.

Part IV. C of Policy 33, entitled "Advice and Informal Dispute Settlement", emphasizes that members of the Ethics Committee will attempt informal resolution of complaints under the Policy. It states, in part, at page 64 of the Policies manual:

Whenever possible, Committee members shall make every reasonable effort to resolve the matter informally. While individual Committee members shall attempt in good faith to mediate complaints brought to it on an informal basis, they reserve the right to end such attempts at mediation if, after a reasonable amount of time has been invested, it is clear that the complaint is frivolous, that informal resolution is, in the Committee member's view, inappropriate, or if one or more of the principals involved refuses such resolution. The matter shall proceed to formal resolution (see D. below)

The Report of the Ethics Hearing Committee (96-1) refers to Professor Westhues' reliance on this provision, at the beginning of its introductory comments:

Throughout this proceeding, Professor Westhues (and, initially, Professor Dubinski, on his behalf) has argued that the matter should have been/be resolved informally; in his opinion, in the absence of an attempt at informal resolution, Policy 33 has been violated. The Appellant clearly indicated from the outset and maintained her position that an informal approach was unacceptable to her and, as is her right, initiated a formal approach, citing section IV.D.1 of the Policy.

Although the wording of the excerpted portion of Part IV. C, set out above, leaves something to be desired, it seems clear that some initial attempt at mediation is called for.

Professor Westhues was advised by the Secretary to the Ethics Committee, in a memorandum dated 11 April 1996, that a formal complaint had been lodged against him by R; a copy of the formal complaint was attached. The memorandum continued:

For information, she has also provided a copy of the March 28, 1996 memo to you re "Presentation and Bio-Politics Comments" and has refused an attempt at informal resolution, which she is entitled to do under Policy 33 on Ethical Behaviour (Ref: IV.C., second paragraph, last line).
A three person committee will meet next Tuesday, April 16, to confirm whether the Ethics Committee has jurisdiction. You and Ms [R] will be informed of the outcome of that meeting.

On April 17, 1996, the Secretary sent a memorandum to the parties advising that "[b]ased on material received to date, the three-member hearing committee has concluded that it does have jurisdiction in this case". The memorandum then described the first meeting that the Ethics Committee intended to hold:

At the first or preliminary meeting, the committee will meet with you, simultaneously, to review the procedures to be followed (see "bullets" below) and, also, to review the complaint, and to exchange additional (see "endnote", page 2) evidence and supporting documentation. This will be viewed as a "discovery" session, during which the parties will be asked to articulate, briefly, what they see the issues and possible remedies to be. The committee will attempt to clarify the issues in dispute, consider possible lines of resolution and determine whether the issues may be resolved without continuing the formal hearing; that is, this meeting does not preclude an attempt by the committee to reach an "informal" resolution.

It strikes me as rather strange that the Committee inferred from R's statement (in her formal letter of complaint dated 8 April 1996 ) that "I would like this matter to be directed to the Ethics Committee", that she was refusing any attempt at informal resolution so that a formal hearing had to be instituted forthwith and then proceeded to establish, as the first order of business, the determination of whether the issues might be resolved informally without continuing the formal hearing.

When Professor Westhues expressed concern that the Committee should attempt to see the matter resolved informally, he then received a memorandum dated 23 April 1996, from the Committee Chair, Professor Lennox, confirming the decision to proceed with the formal hearing and asking for submission of material requested in the Committee Secretary's memorandum of 17 April 1996. Professor Westhues responded initially in a memorandum dated 25 April 1996:

...l want to request an informal meeting with whichever member of the Ethics Committee has or had the responsibility of attempting to resolve Ms [R's] complaint informally. In my judgment, that committee member has made a very serious error in failing to contact me before now, to discuss Ms [R's] concerns with me, and to inquire as to any means of informal resolution that might occur to me. What Policy 33 calls "every reasonable effort to resolve the matter informally" must involve, at the barest minimum, meeting once with the complainant and once with the respondent. As things stand, I am aware of no efforts at all toward informal resolution and I have never even been informed of which committee member is or was charged with attempting informal resolution.
I understand, as you note in your memo of 23 April, that Ms [R] says she does not want to resolve her complaint informally. I would imagine that in the vast majority of cases brought to the ethics committee, either complainant or respondent or both initially insist on going directly to adversarial proceedings. This, however, in no way exempts the members of the ethics committee from making, in the words of Policy 33, "every reasonable effort to resolve the matter informally". It is only "after a reasonable amount of time has been invested "that Policy 33 allows the committee to admit failure of attempts at informal resolution and allow the case to proceed to formal resolution.
Please, at your earliest convenience, either give me the name and number of whichever member of the ethics committee has had the task of attempting informal resolution in this case, or ask that person to telephone me at ext. 3660 or 746-7739, so that we can arrange to meet. Be sure of my good wishes to all concerned, and of my readiness to cooperate in resolving Ms [R's] concerns promptly, fairly and in accordance with Policy 33.

Professor Westhues' interpretation of Policy 33's requirements is one that its language reasonably bears and also accords with its underlying spirit. This interpretation was actively supported by the Academic Freedom and Tenure Committee of the Faculty Association of the University of Waterloo and by the Canadian Association of University Teachers. It sheds a good deal of light on why Professor Westhues "refused to cooperate with the Hearing Committee".

This point is not acknowledged in the Ethics Hearing Committee Report. Instead, the Committee Report states:

It is important to note that: (1) The Appellant attempted to resolve the matter by meeting one- on-one with the Respondent (January 15 and March 26, 1996) and that, based on these experiences, she did not wish to pursue an informal resolution with the Respondent through a member of the Ethics Committee. Effective attempts at informal resolution require a vested interest in doing so on the part of both parties and, also, a sense that the other is bargaining in good faith: the Appellant felt, and indicated that she had already attempted, unsuccessfully, to resolve this matter informally through one-on-one discussions (two) [footnote 5: "According to Ms [R], these were not several friendly conversations, as Professor Westhues states in his May 16, 1996 letter"] with the Respondent. (2) This was Ms [R's } grievance. (3) The Hearing Committee was sensitive to the power imbalance between Appellant and Respondent, given that Ms [R] is an undergraduate student and that Professor Westhues is a tenured full professor. (4) The Appellant was aware of a case between Professor Westhues and a member of the Department of Sociology (Professor Adie Nelson). In that particular case, the iissue of power imbalance was identified. (pp. 1-2)

The Committee appears to have accepted at face value the Appellant's indication that she had already unsuccessfully attempted to resolve the matter informally; it bears noting, however, that the Policy stipulates it is the Committee members who are to make every reasonable effort to resolve the matter informally "whenever possible". Surely it would have been within the letter and the spirit of the Policy if one of the Committee members had contacted Professor Westhues to determine, at the very least, whether he might have a suggestion about how the dispute with Ms R could be resolved. That Committee member, acting as mediator, might then have had something to take back to Ms R that conceivably could have caused her to change her mind about pursuing the complaint formally. I also do not see the relevance of the Hearing Committee's sensitivity to the "power imbalance between Appellant and Respondent" or believe it significant that "the issue of power imbalance was identified" in a case between Professor Westhues and another member of the department of Sociology and about which the Appellant was aware. Members of the University of Waterloo community, including students, are given rights and responsibilities under its Policies and it is the determination of those rights and responsibilities pursuant to the explicit requirements of those Policies that should engage the sensitivity of Committees constituted and empowered under them.

Professor Westhues attended a Preliminary Meeting of the Hearing Committee on May 17, 1996. He was accompanied by Professor Roman Dubinski of the University of Waterloo Faculty Association's Academic Freedom and Tenure Committee. Professor Dubinski had already written to Professor Lennox as Chair of the Ethics Hearing Committee on 13 May 1996 setting out the reasons why he and his colleagues on the Academic Freedom and Tenure Committee had "grave reservations" about Professor Westhues attending the meeting of the Hearing Committee. Professor Westhues attended the May 17th meeting only briefly to hand out a memorandum, dated 16 May 1996, and to make the following statement: "Never in twenty-seven years of University teaching, have I been pitted against one of my students in an adversarial proceeding. I find the summons to this meeting so hurtful and so abusive that I am unable to respond personally or orally without losing my composure and I have therefore written a detailed response which I want to leave with you. Professor Dubinski has agreed to remain on my behalf and I wish you all a very good day." These words reveal an intensity of feeling that, from my perspective, appears overblown but, after hearing Professor Westhues and reading a great many documents authored by him, l can readily conclude that he was genuinely distressed and not merely posturing. The memorandum to the members of the Ethics Hearing Committee and to the Appellant is four pages in length. It identifies several matters of clarification, proposes that the Appellant join him in asking the Ethics Committee to appoint one of its members in assisting to resolve any further concerns she might have and provides certain assurances about the Respondent's own beliefs and intentions. Once Professor Westhues left the meeting, the Chair ruled that his memorandum of 16 May 1996 was inadmissible since he chose not to remain to discuss its contents. (He was subsequently invited by the Chair to resubmit the letter in a memorandum dated 10 June 1996; this was at the point where the Hearing Committee was about to write its report.)

The Chair wrote to Professor Westhues on May 29, 1996, to confirm that a further preliminary meeting had been scheduled for June 4, 1996 and advising him that he was expected to be present and that Professor Dubinski could only accompany him as his "representative" (see Policy 33-lV. D. 4a) and not in his stead. On June 3, 1996, Professor Westhues advised the Hearing Committee that neither he nor Professor Dubinski would attend because there had been no attempt at informal resolution. The Hearing Committee then proceeded to hear from the Appellant alone on June 4th and from witnesses on June 10th in the continuing absence of Professor Westhues.

Under the heading of Summary, Observations, the Report of the Ethics Committee (96-1) states:

Timing Delays. Professor Westhues proved not to be a Cooperative Respondent; he stalled; when he did respond, it was at the last minute; he tried to undermine the process (by raising questions about the composition of the Committee, etc.) after the Hearing Committee was well into the process. Professor Westhues finally did respond -- on May 10 (forwarding a copy of the course outline ... on May 13 via Professor Dubinski (enclosing Professor Westhues' May 7 memo, raising objections to two members of the Ethics Hearing Committee and a copy of 25 course evaluations...), and on May 16 (Statement delivered to the May 17 meeting). (PP. 7-8)

While it is reasonable to describe the Respondent's behaviour as uncooperative, there are two criteria that need to be satisfied before such cooperation can legitimately be required. I have already referred to one of these -- the Committee's responsibility under Policy 33 to make at least some initial attempt at mediation -- but there is an even more fundamental criterion: did R's complaint set out the alleged contravention(s) of University Policy in a manner that enabled and required Professor Westhues to respond? I find that this criterion was not satisfied in this case.

The complaint was filed by R in a letter of 8 April 1996 to the University Secretariat. It is headed as follows:

Re: Professor K. Westhues -- Sociology Department
Section: Policy 33 IB,C
Policy 33 section 2, B2 Communication,
C Abuse of Supervisory Authority & Policy 53

Policy 33 IB establishes the University's support for the principle of academic freedom and 33 IC stipulates that "no member of the University Community (faculty, staff ,student) [may] unduly interfere with the study, work, or working environment of other members of the University". Policy 33, section II states in its preamble:

Without limiting the generality of Section I, above, the following actions or practices shall be taken as violations. The actual determination of any violation of this Policy can be made only in the context of a particular case, in accord with fair procedures (as set out in Section IV) (my emphasis)

Section II.B.2 describes discrimination in communication as "any act of communication ... which lacks any redeeming artistic, intellectual or literary merit and which promotes disrespect or intolerance for any person(s) ...". Section IIC provides, in part:

Abuse of supervisory authority includes all forms of making conditional or appearing to make conditional academic, employment, or other services, benefits, opportunities or facilities upon performance unrelated or irrelevant to the academic or employment status of the one supervised. Such abuse can occur even if it does not have the intention or effect of benefitting the supervisor in question.

Policy 53, entitled Faculty Appointments -Tenure, is some 20 pages in length, including appendices.

Obviously, these references by themselves do not notify the Respondent of the complaint that has been made against him. Unfortunately, the text of the complaint letter does not relate any grounds of complaint in substance to the Policy sections listed:

I am writing this letter and filing a complaint because of the issues that have surfaced during Professor Westhues' class. On two occasions, Mr. Westhues made racist and unbalanced arguments regarding the theory of Bio-Politics. I informed the Professor that he was excluding some very relevant information, however, he proceeded to dismiss my point. Further, he indicated with his hand to stop and stated "that he did not want to get into that any further".
On the second occasion, he revisited the theory during the last 3 minutes of class. He claimed that "well, we only have 3 minutes left so we can't have much of a war". His arguments and the terms that he used i.e. employment equity and affirmative action were not explained, rather they were thrown in and were out of context.
I believe that Mr. Westhues violated that above stated policies based on the fact that I had previously stated my concerns. Obviously, the policies and my concerns were not of interest to him on both occasions. I would like this matter to be directed to the Ethics Committee.

This letter of complaint was received by the University Secretariat on 9 April 1996 and the Secretary to the Committee sent a confidential memorandum to Professor Westhues, with copies to members of the Hearing Committee, on 11 April, 1996. The memorandum was headed Formal Complaint (96-1) Under U.W. Policy 33:

A Formal Complaint (copy attached) has been lodged against you by [R]. For information, she has also provided a copy of her March 28, 1996 memo to you re: 'Presentation & Bio-Politics Comments'; and, has refused an attempt at informal resolution, which she is entitled to do under Policy 33 on Ethical Behaviour (Ref: IV. C., second paragraph, last line).
A three-person committee [footnote Bill Lennox (faculty member, Civil Engineering), who will chair; Tim Blair (undergraduate student, Urban & Regional Planning), Susan Sykes (staff member, Office of Research)] will meet next Tuesday, April 16, to confirm whether the Ethics Committee has jurisdiction, you and Ms [R] will be informed of the outcome of that meeting.
In the meantime, if you have any questions, please feel free to contact me...

The Complainant's memorandum of March 28, 1996 to Professor Westhues entitled Presentation & Bio-Politics Comments reads as follows:

Firstly, for your information, I have included my contribution of the presentation. Also, I have provided extra copies to distribute to [V] and [K]. I contacted [V] last evening, after much debate, to inform her that I will not be participating because of personal reasons. However, I explained that I would leave additional copies with you, which you could give to her at lecture time.
The purpose is to complete this course without academic penalty; and I am requesting a course evaluation to complete my academic requirements. I will pick up my copy at the Secretaries Office for the Department of Sociology on Tuesday.
Secondly, with regards to your repeated theory about Bio-Politics and its origins. On Tuesday, March 26, 1996, you raised the issue of Bio-Politics and the method and manner in which you introduced and maintained the discussion caused me undue stress, humiliation, embarrassment, and I felt alienated. Your actions put me in a state where I cannot function properly because of the racist overtones that you articulated; therefore, I am incapable of contributing in a physical and emotional capacity because the environment you have constructed.
I am formally requesting that the information contained within this letter, with respect to the second part, remain private and confidential. The reason for this request is based on the criteria of student and faculty confidentiality. The points that I have outlined must not be directly or indirectly revealed, whether the manner is orally in the form of written statements.

Signed
[R]
c.c. Professor Lambert

On April 17, 1996, the secretary to the Ethics Hearing Committee wrote to the parties to advise that "based on material received to date, the three-member Hearing Committee has concluded that it does have jurisdiction in this case". There is no evidence before me that discloses why the Hearing Committee came to such a conclusion but it is worrisome that the complaint as set out in the Complainant's formal letter, even when read in light of her memorandum of 28 March 1996, does not disclose any allegations that could be said to constitute a breach of the policies of the University of Waterloo. The mere use of the words "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 in either document of how Professor Westhues' behaviour can allegedly be characterized in these ways. Even more important, as section 11. B. 2 of Policy 33 makes clear, the complaint would have to disclose that Professor Westhues' use of such terms was gratuitous before it could be said to contravene Policy 33. To conclude that Professor Westhues was required to cooperate with the Hearing Committee when it had no apparent basis for claiming jurisdiction leads to a very slippery slope where academic freedom of expression is censored in the name of countering racism.

The secretary's memorandum of April 17, 1996 goes on to describe the preliminary meeting that the Committee proposes to hold. It is described as a "discovery" session: the Committee will attempt to clarify the issues in dispute, consider possible lines of resolution and determine whether the issues may be resolved without continuing the formal hearing; that is, this meeting does not preclude an attempt by the Committee to reach an "informal resolution". With respect, I believe the Committee's approach in this case was muddled. The time for attempts at informal resolution was prior to the commencement of a formal hearing. The decision to take jurisdiction and constitute a formal hearing, even if that hearing is to begin with what is described as a "discovery" session, requires that there be a substantial complaint justifying a discovery process. Discovery of the issues makes sense if the Hearing Committee has adopted an informal mediation role but once the formal hearing is constituted, a process is in train that potentially leads to disciplinary sanction.

Nor do the Complainant's other allegations define behaviour that, if believed, would be found to constitute an offence under University Policy. The allegedly inadequate definition of "employment equity" and "affirmative action" may speak to Professor Westh ues' failings as a University teacher but I do not see how they establish a foundation for a formal complaint to the Ethics Committee. Furthermore, the Complainant's almost formulaic allegation that she had been caused "undue stress, humiliation, embarrassment, and feelings of alienation," equally does not establish grounds for complaint. Expressions of opinion are sometimes offensive, even hurtful, but that is sometimes the price of guaranteeing the free expression of ideas in the University. This is not to say that faculty members do not have obligations to behave responsibility but, again, that responsibility is to avoid giving offense gratuitously. At the beginning of the Summary, Observations section of its Report of 23 August 1996, the Ethics Hearing Committee states:

It is clear that events were interpreted differently by the respective parties. However, the Hearing Committee believes that Professor Westhues' statements and his handling of the topic created an uncomfortable learning environment for Ms [R].

I must emphasize that the test of whether Policy 33 was violated by Professor Westhues is not met simply on the basis that one of the students felt uncomfortable; discomfort is often the result when any of us is challenged by ideas or opinions that clash with our own. A violation of Policy 33 would require that Professor Westhues' statements and handling of the topic was gratuitously offensive within the parameters established by its terms. I cannot conclude, just as the Provost could not conclude, that this was the case and, for the reasons set out above, I do not agree that Professor Westhues was obliged to cooperate with the Committee.


2. W and his colleague Professor Dubinski (now retired) circulated confidential documents identifying R. This is unacceptable.

In his letter of 2 April 1997 to President Downey, the Respondent answers this charge:

The Provost's statement that I "circulated confidential documents identifying R" is factually incorrect. The word circulate connotes broad or public distribution... I am not sure whether it would have been a punishable offence for me to do what the Provost accuses me of doing, but in fact I did not do it.
As indicated on my memo of 22 April 1996 to [the secretary to the Ethics Hearing Committee], I provided copies of documents that included the Complainant's name to two people: my academic colleague/advisor from the FAUW AF&T Committee (Professor Roman Dubinski) and my legal counsel at CAUT (Kevin Banks). My right to consult as I did (and with Professor Len Guelke, who replaced Professor Dubinski after the later's retirement on 1 July 1996) has never been in dispute. Professor Lennox affirmed it in his memo of 17 April 1996:

Documents are not to be shared, or matters discussed outside the meeting room -- before, during or after the hearing (obviously, this doesn't extend to one of the parties and her/his support person discussing the case between them; also, it does not preclude consulting legal counsel for advice).

Whether Professor Dubinski should have removed the Complainant's name from documents before submitting them for discussion in the AF&T Committee is a separate question that needs no answer here. An accusation against one professor is not a legitimate basis for penalizing a different professor. An accusation against a committee does not justify punishing someone who neither belonged to that committee nor attended its meetings.

There is no evidence before me that would suggest that Professor Westhues should be held responsible for the release of documents which included R's name to the full Academic Freedom & Tenure Committee's of the University of Waterloo Faculty Association and the Canadian Association of University Teachers. I simply reaffirm that even if Professor Westhues was found to be jointly responsible for revealing R's name, the imposition of a one month's suspension without pay is not warranted either procedurally or substantively under the Policies of the University of Waterloo.

 

3. Subsequent to the Hearings, W copyrighted and published a pamphlet entitled "The Risks of Personal Injury in Liberal Education". In this pamphlet he quoted verbatim from a letter sent to him by R, despite her clear instruction that the material was to remain private and confidential and was not to be revealed either directly or indirectly. Although R is not named in the pamphlet, another student recognized her situation and brought the quote to her attention. I consider this to be highly offensive and unacceptable behaviour on the part of W.

The pamphlet to which the Provost refers is subtitled "A Warning to Students" and a clue to Professor Westhues' reason for writing it is provided on page 2:

The Temper of our Time
Why then, after 25 years of University teaching, do I feel obliged to spell out the risks of humane learning in a booklet for students?
Because times have changed. Something about Western Civilization in these twilight years of the twentieth century has bred into today's youth a personal fragility or sense of insecurity that makes them unusually vulnerable to being hurt. Critics speak of the minimal self, identity politics, the culture of complaint, and nation of whiners. It seems sometimes as if a virus is in the air, and students who catch it cringe with real pain at the mention of an idea they find disagreeable.
. . .
Whatever the reason, a significant minority of today's students finds the exercise of grappling with new and strange ideas exceedingly hard to take. The calisthenics of vigorous debate and argument easily overtax their strength. "This is verbal abuse," the student says. "My discussion group is racist. I feel violated. The book is sexist, biased and degrading, insulting and humiliating to read. The lectures are like a vicious, intimidating assault on who I am."
Most professors in the Humanities and Social Sciences can cite examples of personal injury from their classes. Two separate recent incidents from my own classes can serve here for illustration.

The quotation from R's memorandum to Professor Westhues of March 28, 1996 occurs at page 6 of the pamphlet under the heading "Second Example of Student Injury":

In programs of physical education, an injury can cause such excruciating pain that the injured party abandons further attempts to learn and withdraws, sometimes with feelings of great frustration or anger. This case in my class had a similar result. The injury disrupted plans for the class presentation by the student's own discussion group, the members quarreled and split into two groups. In the end, the injured student withdrew altogether, leaving other students in the lurch, and send me this note, composed from the vocabulary of the culture of complaint:

On Tuesday, you raised the issue of Bio-Politics and the method and manner in which you introduced and maintained the discussion caused me undue stress, humiliation, embarrassment, and I felt alienated. Your actions put me in a state where I cannot function properly because of the racist overtones that you articulated; therefore, I am incapable of contributing in a physical and emotional capacity because the environment you have constructed.

While in some sense the Respondent's publication of this portion of the Complainant's memorandum to him may be said to contravene her "clear instruction that the material was to remain private and confidential", I do not see that it is directly related to the substance of Report 96-1 of the Ethics Hearing Committee or that it contravenes Policy 33. While admittedly rather self-serving in its description, this section of the booklet, no less than the work as a whole, appears to be aimed at understanding how certain types of disputes arise in University classrooms.

In the first place, the quote is anonymous and no characteristics of the student or of the course in which the event occurred are revealed. It is therefore difficult to see how the issue of confidentiality arises in any substantial way. It is a matter of speculation whether other students became aware of the complaint in the course of the Hearing Committee's investigations with class members but the care with which the Respondent attempted to conceal the identities of all students quoted in the booklet causes me to question the Provost's characterization of the Respondent's behaviour as "highly offensive and unacceptable".

 

REMEDY

The report of Ethics Hearing Committee 96-1 has been properly rejected by the Provost in his memorandum of March 11, 1997. I confirm the quashing of that report and of the Provost's finding that matters arose from the ethics complaint and subsequent events that warranted discipline. Accordingly, l grant Professor Westhues' appeal of the Provost's decision to suspend him for one month without pay. I also award reimbursement of expenses incurred by Professor Westhues in securing legal advice in respect of the Ethics Hearing Committee 96-1 matter. Reimbursement is to be made upon presentation of receipts to the Secretary of the University and the amount is not in any event to exceed $3,700.14 which is the sum identified in Professor Westhues' letter to me of 11 July 1997.

Professor Westhues also seeks remedial relief in respect of matters arising out of Ethics Hearing 94-3 where he was also the Respondent. Indeed, he explicitly links the two proceedings in his letter to President Downey of 2 April 1997:

But ethics proceeding 96-1 did not take place in isolation. It was an extension of ethics proceeding 94-3. Following are the more obvious continuities between the two ethics proceedings;
- that the office Provost was held by the same professor for 96-1 as for 94-3, a professor publicly chastised by CAUT for his handling of the earlier case;
- that 96-1 was brought in the context of continuing publication on UWlnfo of the report of 94-3, along with the Provost's open letter;
- that 96-1 was brought a few weeks after the UW Gazette gave renewed publicity to 94-3 -- in particular the letters, derogatory of me, by Professor Ron Lambert (7 and 21 February 1996) and Professor Adie Nelson (21 February 1996);
- that Dr. Sykes was involved in approving the design and preventing the release of a study that repeated and reinforced the finding of 94-3;
- that Professor Lambert was a witness supporting the complainant in both 94-3 and 96-1;
- that the student who complained in 96-1 had a prior, cordial relationship with Professor Lambert through an earlier complaint not involving me;
- that Professor Lambert counseled the complainants in both 94-3 and 96-1 about how to proceed with their complaints;
- that the student who complained in 96-1 had a cordial relationship with Professor Nelson, the complainant in 94-3;
- that the student who complained in 96-1 was aware of the earlier case;
- that the hearing committee in 96-1 was aware of the earlier case, saw itself as addressing the same issue as in 94-3, and quoted from the chapter on 94-3 in John Fekete's book:
- that the hearing committee proceeded directly to a hearing on both 94-3 and 96-1, ignoring reminders from me that Policy 33 requires prior attempts at informal resolution;
- that in both 94-3 and 96-1 the Provost imposed punishments on me beyond those recommended by the hearing committee;
- that the Provost justified his punishments in both 94-3 and 96-1 on the basis of things I wrote afterwards: a letter to colleagues and friends in 1994, and booklet in 1996.

No reasonable person could study these continuities, especially against the background of other unusual restrictions and punishments imposed on me during this period, and see nothing more than routine administration of university policies. On the contrary, any reasonable person would suspect that the ethics policy in this case may have been ferried into waters beyond the map of policy and used for the unauthorized purpose of harassing a professor whose teaching threatens certain established interests.

The university owes it to itself to try to get to the bottom of these proceedings: to hold a full, public, external, independent, impartial inquiry into the official actions taken against me in relation to Policy 33. So that the inquiry may be a learning experience of benefit to all, it should be sponsored jointly by the university and CAUT, conducted by scholars of some stature, and guided by procedures and terms of reference clearly in advance. I would give such an inquiry my full cooperation.

In his letter to me of 11 July 1997, which accompanied several volumes of documents submitted in support, Professor Westhues asks that I quash the report of Ethics Hearing 94-3. I cannot begin to do so. I have no jurisdiction to entertain an appeal of the decisions made pursuant to that hearing and the process that would have to be followed in doing so would also have to be markedly different. Professor Westhues also submitted many documents regarding the "restrictions and punishments" imposed on him pursuant to Ethics Hearing 94-3 and the documents surrounding the grievance which he lodged and which was never brought to a conclusion. On the basis of these submissions he also asks me to "quash the restrictions and punishments" imposed by the department chair in letters dated 10 and 17 December 1993, and 14 February and 14 March 1994. I likewise cannot begin to accede to these requests and for the same reasons as given above.

I emphasize that in asserting my inability to entertain these requests I make no statement about their merits. Indeed, in reviewing a small mountain of documents, as I have done thoroughly, the only conclusion I choose to draw is that the University of Waterloo and its constituencies are not well served by some of its policies, especially Policy 33. I do not believe that the University "owes it to itself to try to get to the bottom of these proceedings: to hold a full, public, external, independent, impartial inquiry into the official actions taken against [Professor Westhues] in relation to Policy 33". Instead, the University owes it to itself to take a good look at its policies.

I note, with interest, that a similar conclusion was reached by the Academic Freedom and Tenure Committee of the Canadian Association of University Teachers. Its "Report of the AF&T Committee into the Complaint of Professor Westhues", published as a special insert in the November 1996 CAUT Bulletin, begins as follows:

On Sept. 16, 1995, The CAUT Academic Freedom and Tenure Committee (the "CAUT AF&T Committee") considered a recommendation from Don Savage, Executive Director of CAUT, that a Committee of Inquiry be established to investigate Professor Westhues' complaint that he had been treated unfairly by the Chair of his Department (the Sociology Department), two internal University committees, and the University of Waterloo ("UW") administration . After long debate, the committee instead decided to prepare its own report from the documentation on hand. In coming to this decision, the committee was influenced by the consideration that it was unlikely that any new information would emerge to inform the work of a Committee of Inquiry, given the vast amount of material already available. Moreover, it seemed likely that a Committee of Inquiry would itself take considerable time to conclude it investigations -- extending the already protracted period of time that had been consumed in this matter -- and that the process would involve the many parties to the dispute in time-consuming and distressing, but ultimately redundant repetitions of the claims and counter claims, defenses and rebuttals which were amply evidenced in the growing files of the committee.

The time has come to move forward. I have some ideas about what policy changes need to be considered if some of the difficulties of the past are to be avoided or at least minimized in future. These will be forwarded separately to President Downey for his consideration. I also have some comments, perhaps gratuitous, about the parties to this proceeding and their roles. The Provost, Dr. Kalbfleisch, is in my observation and appraisal, an honest, credible person, trying his best to do an often absurdly difficult job. His concern for the well-being of Ms R, the student complainant, is laudable and characterizes his attitude towards his role. He bears no malice or ill will to Professor Westhues. Perhaps the most gratifying incident that occurred during the hearing was when Dr. Kalbfleisch assured Professor Westhues "I don't want to get rid of you from this campus" (transcript p. 24) and Professor Westhues' response "That's music to my ears Jim Kalbfleisch. I honestly appreciate you saying that ...".

Professor Westhues is also, in my observation and appraisal, an honest, credible person. He is also, in some ways, a most difficult sort of faculty member: intense in all his dealings often to the point of discomfiture for those around him; highly focused on procedure and detail and dogged to an often exasperating degree. Not surprisingly, these qualities also often contribute to making him a proficient teacher, researcher and writer. But, just as Administrators have to mind their substantive and procedural P's and Q's, so do even the most earnest faculty members have to recognize that some axes, perhaps many axes, are just not worth grinding.

If forward movement is to be achieved, I believe Professor Westhues needs time to disengage from what has been a lengthy series of administrative proceedings. I therefore grant him a special paid research leave of six months with timing to be negotiated among his Department, the President's Office and himself. During this time he is to be paid his regular salary and is to devote himself fully to academic research and writing.

(signed)
Peter P. Mercer
Adjudicator
February 10, 1998