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Professor Mentions "The Shining" and Gets a Pay Freeze
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Pamela Smock, PhD, and a member of the faculty in the Sociology Department at the University of Michigan, quietly confronted one of her PhD students about the possibility that the student's work had been plagiarized. That student and two others then charged Dr. Smock with sexual harassment.  University officials raided Dr. Smock's office and, despite having never received a student complaint in her decades of work at the university, received 147 anonymous complaints about her behavior.  The complaints included: asking the spouse of a student for help in backing her car out of a parking lot at the university, discussing sexual activity, and making a joke that referenced the movie, "The Shining."UM picture.jpg

 

 

 

 

Dr. Smock was then subjected to disciplinary proceedings.  She was not notified of the charges against her until half-way through the disciplinary process. Some new charges, related to civility, emerged for the first time at her hearing on the charges.  She was also not given a chance to question her accusers at the hearing (or even have them identified).  Following the disciplinary hearing, the panel imposed a three-year pay freeze and postponed her sabbatical and the accumulation of any time for future sabbaticals.  She was also prohibited from meeting with students outside professional settings and could no longer chair doctoral committees.

 

Dr. Smock filed suit in federal district court on several bases, including the denial of due process, vague and unconstitutional regulations on faculty conduct, and deprivation of her First Amendment rights. The University moved to dismiss her claims.  The court dismissed the First Amendment and vagueness allegations, but held that although Dr. Smock was given the chance to be heard at the hearing, she was not given a meaningful chance to be heard.  The flaws in her due process rights were:

  1. Belated notification of the charges (some not revealed until the hearing). As a result, she was unable to prepare a defense. 
  2. No ability to know or question her accusers.
  3. The standard of review for finding violations was never stated nor found in the hearing process. 

You can read the court's decision here

The decision comes at a time when the issue of due process on campuses around the country is the subject of litigation and reform at the level of the federal Department of Education. In Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), a federal appeals court held that a student accused of sexual harassment had been denied due process rights because he was not permitted to cross-examine witnesses. The victim and accuser had differing stories, and the 23 witnesses offered little clarification.  The absence of cross-examination was, according to the court, significant and violated the accused's constitutional rights.

 

The Department of Education's new proposed rules require the right to know the charges, who has made the charges, the opportunity for questioning of the accuser (either in person or via live stream), the status of investigations, the addition of any new charges, and the right to review all the evidence to be presented in the case. Assessment of the demeanor of witnesses is an important part of the role of adjudicators in these campus hearings. The rules are now open for public comment.

 

DISCUSSION STARTERS

 1.  Explain what constitutes due process in campus disciplinary proceedings.

2.  Discuss the changes the Department of Education has proposed and why, in light of the due process decisions.