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February 22, 2021

VIA ELECTRONIC MAIL:

Gregory F. Scholtz
Director
AAUP
1133 19th Street, NW
Suite 200
Washington, DC 20036

I write in response to your February 1, 2020, letter regarding the AAUP's inquiry
about Pacific University Professor Richard Paxton. The confidential nature of items
discussed in your letter dated February 1, 2020, constrain Pacific University from
clarifying many items of misinformation outlined in the letter. The letter did,
however, seem to raise more generally applicable concerns about certain policies and
processes relating to faculty conduct investigations that I would like to address.
Accordingly, the following is an overview of our procedures and processes and is not
meant to be a particular statement of the specific circumstances related to Dr. Paxton.

First and foremost, Pacific University has great respect for the tenets of academic
freedom, tenure, and due process, as set forth in the 1940 Statement of Principles on
Academic Freedom and Tenure. This respect is practiced through the way faculty and
administration at Pacific regularly work in collaboration to identify and refine
governance policies and procedures that address conduct issues. This respect,
however, does not diminish our federal and state obligations to respond to complaints
of educational obstruction or a hostile educational environment based on sex, race, or
other protected characteristics. Pacific University's adopted procedures in this regard
are aligned with both state and federal legal requirements and principles of academic
freedom. We would like to take this opportunity to explain some of the interplay
between Pacific University's mandated obligations to address claims of a hostile
educational environment and the rights afforded under Pacific University’s Faculty
Governance Handbook and other related policies.

When Pacific University receives a complaint alleging a violation of state, federal, or


university policy, different policies and processes can be triggered depending on the
nature of the complaint. In the case of a formal complaint alleging harassment within
the jurisdiction of Title IX of the Education Amendments of 1972 (Title IX), Pacific
University must follow its Sexual Misconduct Policy and Title IX Process. The Title
IX Process involves, among other things, an investigation and grievance process. At
the beginning of the Title IX Process, Pacific University initially notifies the
respondent of the investigation and allegations, describes the non-retaliation
obligations of the parties and the anticipated process, and provides the opportunity
for the respondent to engage an advisor to assist them throughout the Title IX
Process. Initiation of an investigation is not dispositive of the outcome of an
investigation—rather, it is a process by which Pacific University can determine if, by
a preponderance of the evidence, asserted conduct occurred.

Also, at the outset of a complaint, determinations of safety and equity mandate that a
review occur to afford both the complainant and respondent a safe and equitable
environment. When issues of safety and ongoing bias are raised, Pacific University
works to create separation between the conflicted parties—this can include interim
measures of transferring a student from a class or placing an employee on paid
administrative leave. In case of the latter, the administrative leave is not a suspension
and does not diminish the due process rights of a faculty member provided for in the
Faculty Governance Handbook.

Pacific University's Title IX Process does not displace the Faculty Governance
Handbook. In fact, the options and obligations of the Faculty Governance Handbook
are not implicated until the completion of the investigation and grievance procedures
that occur under the Title IX Process. The Faculty Governance Handbook does not
outline how issues of misconduct need to be investigated nor does it afford a specific
procedure prior to Pacific University taking a termination action. The right to a
hearing, and to be heard by peers, is well outlined in the Faculty Governance
Handbook and is not triggered while an investigation pursuant to the Title IX Process
is ongoing. Therefore, faculty members' rights of due process as afforded by the
Faculty Governance Handbook are not impinged by the Title IX Process.

A faculty respondent has an opportunity to discuss Academic Freedom during the


investigation and grievance process. If any further action is taken under the Faculty
Governance Handbook as a result of the Title IX Process, the faculty member would
be able to again explain the implications of Academic Freedom to their faculty peers
as part of the process provided in the Faculty Governance Handbook. As you have
stated, regarding academic due process, Interpretative Comment No. 9 of the 1940
Statement asserts that “a suspension which is not followed by either reinstatement or
the opportunity for a hearing is in effect a summary dismissal in violation of
academic due process.” We agree, and that is why our process clearly calls for and
mandates that following the investigation and grievance process, if called for by the
outcome, a faculty member will have an opportunity for a hearing in front of one’s
peers in accordance with the Faculty Governance Handbook. Although we agree that
classroom speech determinations related to Academic Freedom and whether such
speech violates the standards of professional ethics is a judgment to be rendered by
professional peers, Pacific University must address complaints about conduct—
whether or not it occurs in a classroom setting—pursuant to the applicable federal
and state laws and regulations.

When Pacific University engages a neutral external investigator, that investigator


determines their own order and timing for the investigation process, including when
in the process the respondent interview occurs. While the university hopes for a
speedy process, it does not control the investigator’s timeline. A complete, full and
fair investigation with extensive witness interviews and evidence for review takes
time. Investigation timing is not tantamount to an indefinitely deferred hearing or
dismissal in accord with Regulation 5c(1).

All of the procedures and timing of the investigation and grievance process are
discussed during a voluntary initial meeting between the Title IX Coordinator (or
designee) and the complainant/respondent after the Notice of Allegations is issued.
For instance, one item that is imperative to explain to parties and their advisor is the
importance and obligations under FERPA when student records are implicated as
potential evidence. Pacific University can provide such information to the parties as
part of the Title IX Process after it is deemed to be directly related to the allegations
of the complaint. Typically, this occurs by the investigator's determination. This
procedural information is readily available and is explained to the parties and the
parties' advisors upon a request for FERPA-protected information.

We hope that this letter outlining our general processes will assist in alleviating
concerns that you may have about Pacific University's Title IX Process and how it
aligns with its obligations of due process and academic freedom as described in the
Faculty Governance Handbook.

Sincerely,

Lesley M. Hallick, PhD


President

cc: Dr. John Miller, Vice President of Academic Affairs and Provost
Dr. Leif Gustavson, Dean, College of Education
Ms. Jennifer E. Yruegas, General Counsel
Professor Leigh Schaid, Chair, Faculty Senate
Professor Marcus Welsh, Chair-elect, Faculty Senate
Professor Krishnan Ramaya, Chair, University Personnel Committee
Professor Mark Bailey, Senate Representative, College of Education
Professor Amanda Stead, Senate Representative, College of Education
Professor Michael Dreiling, President, Oregon AAUP Conference