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A report by the Committee on Faculty Rights and Responsibilities declared that the Administration’s investigation on allegedly discriminatory remarks made by Professor Donald Hindley (POL) lacked thoroughness and impartiality. The report concluded that decisions made by Provost Marty Krauss to threaten termination and place a monitor in Hindley’s classroom “should now be entirely withdrawn.”

“We find that… [Krauss’] decision failed to take proper account of the multiple and fatal procedural flaws in the implementation of University harassment policies, a failure that itself violates Professor Hindley’s right under the Faculty Handbook to fair and equitable treatment under those policies,” said the report. “The discipline imposed on the basis of those policies was excessive, and should also have been suspended during the period of our review, and… her actions to date pose a threat to Professor Hindley’s academic freedom and to that of other faculty and students, a matter on which we retain an active interest.”

Furthermore, the report added, “because the Provost’s October 30 decision was based on her acceptance of a deeply flawed process, we believe that she has violated Professor Hindley’s right to fair and equitable treatment.”

The report, which was agreed upon unanimously, was written by Prof. I. Tzvi Abush (NEJS), Prof. William Flesch (ENG), Prof. David Jacobson (ANTH), Prof. Robert Meyer (PHYS), and CFRR chair Profe. Richard Gaskins (AMST). Both Hindley and Krauss declined to comment.

According to the report, the committee used the material given to the Provost, “which consisted entirely and solely of a report submitted to her by the HR investigator,” as well as conducting outside interviews.

“On the basis of the record in this case, we believe that no one is in a position now to make that determination,” the committee stated. “Because of multiple and fatal flaws in applying the [Non-Discrimination and Harassment Problem Resolution and Appeal Procedure (ND Procedure)] at various levels and stages, the investigator’s findings provide no credible basis for the Provost’s decision in this case.”

One issue the committee found was that there were no attempts at resolving the complaint informally prior to Provost Krauss’ Oct. 30 letter, nor any attempts by Politics Chair Professor Steven Berg to speak with Hindley on an informal basis.

“Further opportunities for informal resolution were available… when we pressed this point in our interviews, what we heard in response was an overriding concern for the confidentiality of the student who complained, and a feeling that informal intervention probably would not have worked in Professor Hindley’s case,” stated the report. “Neither reason persuades us. Since the alleged offending speech occurred during a classroom session in which all students were present, an informal approach to Professor Hindley several weeks later would likely not have revealed the identity of the student.”

The committee also demonstrated the investigator’s failure to speak to Hindley a second time, which “is meant to give him a chance to offer ‘final comments, clarification, etc.’ before the finds are passed on to the Provosts.” Yet, according to the report, “academic officers reviewing her report apparently concluded that a return visit would have provided no useful information, and that Professor Hindley’s reported comments had already confirmed the investigator’s conclusions.”

“We find their response seriously misguided,” the committee continued. “We believe that this specific procedural failure, in itself, makes the investigator’s report fatally deficient as a basis for any disciplinary decision. We found it especially disturbing that Professor Hindley was the last person interviewed in this month-long investigation, and that the investigator’s report was submitted to the academic administration one day after she had spoken with him.” Furthermore, they stated, Hindley’s right to have a colleague present at the interview, for reasons of interpretation as well as to help mitigate future dispute about what Hindley stated, was also violated.

The report stated at length the committee’s view that the investigation lacked thoroughness and impartiality for failing to meet properly with Hindley and interview a number of his students.

“During this month-long process, the investigator was willing to pursue a third-hand report that two other students were also concerned about Professor Hindley’s comments in class…these reports were treated as confirming the result, even though the investigator never talked to the students involved nor indicated their particular concerns in her findings,” wrote the committee. “By the very nature of a harassment claim, especially when the issue for investigation is the impact of speech used by a professor in the classroom, it was essential for someone to inquire objectively how other students reacted to the same speech.”

They also stated that while they understood the administration’s stance on protecting the complainant’s anonymity, the inquiry could not remain as such “at the expense of thoroughness in determining whether classroom speech constitutes discriminatory harassment.”

Furthermore, the committee disagreed with the investigator and the Provost’s definitions of discriminatory harassment, stating “under the ND Definitions, to qualify as harassment, the speech must ‘have the purpose or effect of unreasonably interfering with a person’s education…by creating an intimidating, hostile or offensive environment,’ with such consequent adverse effects as lower grades or weaker recommendations.”

They added the U.S. Department of Education’s Office of Civil Rights, which Brandeis adheres to, states that discriminatory environments “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.”

The apparent vagueness of the Provost and the investigators’ definition of discriminatory harassment would further compound the situation, the committee stated. “If Professor Hindley is being monitored to ensure that he will not continue to violate the standards of harassment, he needs to know how those standards are likely to be interpreted, particularly if future offenses carry a threat of termination,” the report said. “If a monitor is told to attend all class meetings and report back on offensive speech, the standard needs to be clearly understood by the monitor and the Provost. Based on our investigation, we find no clarify on any of these levels.”

The committee also criticized the Provost’s omission of appeal procedures in her Oct. 30 letter, and restated the Provost’s responsibility to “apply the definition of harassment contained in the ND Definitions.”

Finally, due to the deficiencies the committee found in the investigation, the report ruled against the measures taken against Hindley, which included anti-discrimination training, threats of termination, and placing a monitor in his classroom. “Given the risk of encroached on the academic freedom of both professors and students, it is difficult for us to imagine a case where it would be appropriate to place speech monitors in a classroom,” they wrote, adding “speech monitors should virtually never be used in harassment cases, and certainly not as the first attempted remedy, nor as a means of chilling the instructor pending further measures.”

Expressing concern that the committee was not informed of the Provost’s intent to threaten termination, the committee also stated “we are deeply troubled by the impact of this case on Professor Hindley’s academic freedom—and by extension its impact on other faculty and also on students, all of whom deserve to have the opportunity to speak freely in classes without fear of having their comments monitored.” They added, “because the outcome of this case is still uncertain, we reserve our authority to make a fuller ruling on issues of faculty rights and academic freedom at a later date.

“We strongly support the University’s commitment to address discrimination in all its forms. But we emphasize that, for all future complaints, including the one still standing against Professor Hindley, it is in everyone’s interest that investigations should follow the written procedures with great care,” concluded the report. “Any Dean or Provost reviewing that investigation has a responsibility to ask probing questions about the underlying process.”