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Connell Report of the Formal Hearing Committee Widener University July 20, 2011
Summary The complainants, Jennifer R. Perez and Nadege Tandoh, are second-year law students who have submitted variegated formal allegations of racial harassment, sexual discrimination, and retaliation, against Lawrence Connell, an Associate Professor of Law at the Widener University School of Law, under Widener University’s Discrimination and Harassment Code (“Code”). The University formed a formal committee (the “Committee”) consisting of Professor Judy Ritter (Chair), Associate Vice President of Administration George Hassel, and Professor Jim May, to hear the complaint. The Committee’s charge is to determine whether there is “clear and convincing evidence” that Professor Connell has committed an infraction of the Code. This is believed to be the first time that the University has impaneled a Formal Committee to resolve a complaint under the Code. To the Committee’s knowledge, there is no institutional precedent for these proceedings. In issuing its report (“The Report”), the Committee hereby makes four unanimous determinations. First, it determines that there is not clear and convincing evidence that Professor Connell has violated the Code pertaining to sexual harassment or discrimination. Second, it determines that there is not clear and convincing evidence that Professor Connell has violated the Code pertaining to racial harassment or discrimination. Third, it finds that Professor Connell has violated the Code concerning retaliation. Last, the Committee addresses certain procedural matters. Formal Committee Report, In Re Connell 1
The Report is divided into six parts: (1) introduction, (2) standard of review, evidence and academic freedom, (3) racial harassment and discrimination, (4) sexual harassment and discrimination, (5) retaliation, and (6) procedural questions. I. Introduction Complainants Jennifer R. Perez and Nadege Tandoh (“Complainants”) are students at Widener University School of Law. In the spring semester of 2010, they were enrolled in a Criminal Law class taught by Professor Connell, who has taught at the law school for 26 years.1 On March 10, 2011, the Complainants filed a Formal Complaint (“FC”)2 against Professor Connell pursuant to Section 6 of Widener University’s Faculty Member Discrimination and Harassment Code (“Code”).
Professor Connell is a tenured member of the law faculty. During his 26 years at the law school, he has never had a formal or informal complaint or grievance filed against him. He first learned of these concerns on December 10, 2010, when he was confronted by Vice Dean Kelly after Professor Connell had just completed administering a final exam. Vice Dean Kelly asked Professor Connell to accompany him to the Dean’s conference room. In the conference room, Vice Dean Kelly handed Connell a binder of charges, with a cover letter and associated materials to review. Vice Dean Kelly asked Professor Connell some questions, in the presence of Chief of Security for the law school. Professor Connell was given until December 14, 2010 to respond to the charges in writing. According to Professor Connell, this encounter, “insinuated that I was something evil and sinister. This point was only reinforced by his confronting me with the Chief of Security, as if I were a common criminal, and by his preventing my access to my exams. To compound my humiliation and fears, he had already gone on the record with his letter to characterize my teaching methods as violent and threatening.” Because the law school administration deemed that Professor Connell was not cooperating in its investigation, he was placed on paid administrative leave on December 20, 2010. He has been banned from campus ever since. Professor Connell has since instituted a legal action in Sussex County, DE, against Linda Ammons, the University, and the complainants, for defamation. 2 The Formal Complaint is marked as “Exhibit 5” to the Transcript of the Formal Hearing in this matter. Referenced page numbers herein follow the source. For example, “FC2” refers to page 2 of the Formal Complaint. Formal Committee Report, In Re Connell 2
Complainants allege that Professor Connell has engaged in conduct that constitutes racial harassment,3 sexual discrimination,4 and retaliation under the Code. The burden is upon complainants to demonstrate to the Committee that there is “clear and convincing” evidence of these accusations. The “Record” in this matter is voluminous, comprising more than 1,500 pages of transcripts, affidavits, communications, committee instructions, and legal reasoning and references. It consists of: a. The formal hearing transcript; b. affidavits wherein the affiant acknowledges the duty to tell the truth; c. relevant non-testimonial evidence, and either an original document, photocopy or reprint of an original document; d. such other evidence as the Committee allowed at its sole discretion;5 and, e. cross-examination questions. Notice of Pre-Hearing and Hearing Procedures and Rules, May 19, 2011, item 2. The Record also includes a 3-ring notebook of documents compiled by Vice Dean Kelly, who is also the University’s designated “Grievance Officer” assigned to this matter. Code, Section 6(a).6 The Code requires that the Dean of the Law School appoint a Formal Hearing Committee to consider unresolved formal complaints. Code, Section 6(d)(i). Accordingly, Dean Linda Ammons appointed a Formal Hearing Committee consisting of
Neither complainant accuses Professor Connell of Racial Discrimination under the Code. 4 Ms. Tandoh does not contend that she has been the subject of sexual discrimination. Neither complainant has alleged sexual harassment under Section 4(c) of the Code. 5 Professor Connell submitted copies of 29 supportive emails that he received from former students, five of whom were enrolled in his Spring 2011 Criminal Law class and 24 of whom were not in that class. While the Committee did not discount these emails, because the comments they contained were not accompanied with an acknowledgement of the sender’s duty to tell the truth, they were given less weight than sworn affidavits and in-hearing testimony. 6 This report notes the extent that the Committee either considered anything not specifically listed, or deemed irrelevant something that is listed. Formal Committee Report, In Re Connell 3
George Hassel, Associate Vice President of Administration, and Professors James R. May and Judith L. Ritter of the Law School’s Wilmington campus.7 After informally contacting the parties8 about convenient hearing dates, the Committee Chair sent written notice via certified mail, return receipt requested to the parties advising them that the Formal Hearing would be held on June 6, 2011, and if necessary, continued on June 7, 2011. Faculty members who are accused of discrimination or harassment under the Code are not compelled to attend a formal hearing, and may choose to participate by written submissions. Code, Section 6(d)(iv)(“The accused may elect to waive attendance at the hearing and/or to respond to the charges in writing within twenty (20) days of receipt of notice that a hearing has been scheduled.”). Accordingly, Professor Connell notified the Committee and Grievance Officer Kelly that he was waiving his attendance at the Formal Hearing due to the recent death of his daughter and the serious illness of his brother. Connell to Ritter, May 18, 2011.9 The Committee then asked Professor Connell, in light of his personal situation, if he wished to request a postponement of the Formal Hearing to enable him to attend the formal hearing. Ritter to Connell, May 20, 2011. Professor Connell chose not to postpone the hearing. Connell to Ritter, May 23, 2011. Professor Connell also requested that the hearing be open to the general public. Connell to Ritter, May 18, 2011. The Code permits a public hearing only in the event that
By unanimous consent, committee members chose Professor Ritter to chair the committee. Code, Section 6(d)(i). 8 The University has the right to participate in any formal hearing. Code, Section 6(d)(iii). Mr. Rocco Imperatrice is University Counsel, and served as the Committee’s legal advisor. 9 References in this report to the contents of emails will be denoted as, "sender to recipient, date." Formal Committee Report, In Re Connell 4
all parties agree. Code, Section 6(d)(v)(6). The complainants, however, opposed this request. Luce to Committee, May 19, 2011. Thus, the Committee could not grant Professor Connell’s request. The formal hearing took place on June 6, 7 and 9, 2011, at the Law School’s Wilmington campus. The hearing lasted about 13 hours. On June 6, 2011, the hearing commenced at 9:30 a.m. and adjourned at 4:28 p.m. The hearing on June 7 occurred from 10:00 a.m. until 4:40 p.m., and on June 9 from 1:00-2:29 p.m.10 The following people attended the hearing at all times: Committee members11 Ritter (Chair), Hassel and May; Complainants Perez12 and Tandoh, and their representative Professor Ned Luce; Widener University’s representative, Rocco Imperatrice, Esq.; and a court stenographer. Complainants Perez and Tandoh testified. Suzanne Anderson, Vice Dean J. Patrick Kelly, and Assistant Dean of Student Affairs Serena Williams – who were permitted to attend the hearing only during their testimony – testified on behalf of complainants. At the complainants’ suggestion, the Committee invited the parties to submit a post-hearing memorandum. Professor Connell submitted a closing memorandum on June 2, 2011, prior to the hearing. The Complainants submitted their closing memorandum on June 20, 2011. The record was kept open until the deadline for submitting closing memoranda.
After the adjournment of the Hearing on June 7, 2011, Professor Connell and his representative Thomas S. Neuberger, Esq. were notified that the Hearing would be continuing on June 9, 2011. 11 At the Committee’s request, Ms. Vanessa Gosa as Administrative Assistant to the Committee attended the hearing on June 6, 2011. 12 Complainant Jennifer Perez did not attend the hearing on June 9, 2011. Formal Committee Report, In Re Connell 5
The record consists of more than 1,500 pages. The Committee has held extensive in-person, telephonic, and virtual deliberations. The Committee’s consensus findings are set forth below. II. Standard of Review, Evidence and Academic Freedom A. Standard of Review. The Code states that the standard of review is as follows: “Standard of Persuasion. The Committee may find that the accused has violated this Code only if that finding is supported by clear and convincing evidence.” Code, Section 6 (e) (ii) (emphasis in original). Thus, the burden of persuasion rests with the complainants. The Code does not define "clear and convincing evidence." It is defined elsewhere as "evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials." Black’s Law Dictionary (6th Ed. 1990). B. Evidence. While the Committee elected to provide the parties with wide latitude to develop a record, including the testimony, the complaints and associated documents, and other information, not everything in the record is admissible, relevant, and equally probative under the Code. Under the Code, the Committee may not consider information that is not properly part of a formal complaint. Specifically, a formal complaint may not be based upon alleged allegations of discrimination or harassment against other parties. See Code at 6(b) (“The Complaint must be limited to episodes of discrimination and/or harassment against only the Complainant or it will be rejected by the Grievance Officer.”). Moreover, the complaint may not use any information from third parties without their written consent. The Committee, therefore, excluded various aspects of Formal Committee Report, In Re Connell 6
record in reaching its decisions, including student evaluations and anonymous hearsay statements. C. Academic Freedom. The Committee has considered academic freedom in resolving this matter. The American Association of University Professors (“AAUP”) describes “academic freedom” inter alia, as follows: 1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties …; 2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. …; 3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. … AAUP 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments (“AAUP Principles”), at 3-4. Academic freedom issues are especially acute in law school environments. See, e.g., AAUP Principles (“The concept of academic freedom, though not absolute, is more clearly established at the collegiate level than in public elementary and secondary education.”) The law school’s policies reflect these principles. Widener University School of Law’s policy is to “[e]nsure academic excellence by maintaining the university’s commitment to academic freedom and by upholding faculty governance, especially in matters pertaining to pedagogy, curriculum, and scholarship.” Widener University School of Law, Missions and Goals. These policies have particular saliency in the law school classroom:
Formal Committee Report, In Re Connell 7
While consistently rejecting the orthodoxy that there is a single effective teaching methodology, the Law School has nonetheless traditionally regarded the classroom as its crucible and teaching as its highest calling. The classroom remains the core of the teaching experience. Teaching involves subject matter mastery, thorough preparation, and the skill to deliver that resultant product to the students. A teacher challenges his or her students, striving to develop students’ analytical skills. Widener University School of Law Promotion, Retention and Tenure Guidelines, at 2
The AAUP acknowledges the need to "foster an atmosphere respectful of and welcoming to all persons." AAUP Principles. In particular, an instructor “may not harass a student nor act on an invidiously discriminatory ground toward a student, in class or elsewhere.” Id. Accordingly it is also “the policy of Widener University not to
discriminate on the basis of sex [or] race.” Code, at i.
III. Racial Harassment Claims Complainants contend that Professor Connell has violated the Code’s racial harassment provisions. Section 6(g) of the Code defines “Racial Harassment” as: In general, racial harassment consists of oral, written, electronic, graphic or physical conduct or communication relating to an individual’s race when the conduct: (i) is sufficiently severe, persistent or pervasive that it effects an individual’s ability to participate in or benefit from an educational or employment program or activity. (ii) has the purpose or effect of creating an intimidating hostile or offensive employment or educational environment; or (iii) has the purpose or effect of substantially or unreasonably interfering with an individual’s work or academic performance; or (iv) otherwise adversely affects an individual’s employment or educational opportunities. Code, Section 6(g)(i)-(iv). The Formal Complaint does not identify the particular aspects of the Code alleged to have been violated. The Complainants’ post-hearing brief, however, suggests that Formal Committee Report, In Re Connell 8
Complainants allege violations of Code sections 4(g)(ii)-(iv). See Complainants’ Br. at 3. The Complainants do not allege or argue that Professor Connell has violated Code section 4(g)(i). The Formal Complaint13 contains specific allegations regarding four events relevant to the claim of racial harassment. These relate to (1) a classroom discussion of the assigned Apprendi case in the context of enhanced sentencing for hate crimes,14 (2) a classroom discussion of the assigned Goetz case in the context of mens rea for homicide,15 (3) a conversation that occurred in the classroom after the class covering Goetz finished,16 and, (4) Professor Connell’s invocation of Dean Ammons in in-class
The form for filing formal complaints asks that Complainants: Please describe as clearly as you can exactly what happened to you that leads you to believe that you have been discriminated against and/or harassed. Include dates, if you can ... If there was more than one incident of discrimination and/or harassment, please describe each incident separately.” Code, Appendix B (Discrimination and Harassment by a Faculty Member).
The Formal Complaint reads in pertinent part (FC2): Professor Connell said that he finds a person who is shooting at black folks to be less dangerous than a person who is just shooting randomly. He also stated that he did not “get the point” of having laws against hate crimes. This was after we discussed a case about a man who shot into a black family’s home because he did not want black people moving into the neighborhood. The Formal Complaint reads in pertinent part (FC2): [W]e discussed an assigned case about a New York man on trial for shooting at four young men who were trying to rob him on a subway. The court was determining whether he used too much force because he continued to shoot even after they ran away and had been shot. The casebook did not mention anything about the races of the defendant and [sic] or the victims. In class Professor Connell said that the 4 men were black and that the defendant was white. The Formal Complaint reads in pertinent part (FC2-3): On the same day as [the in-class discussion of the Goetz case], after class, four students stayed to further discuss one of the cases with the Professor. The students in that group were Nadege (a Black student), Jennifer (a Latina student), and two White students. We were discussing the court’s reasoning for the case described Formal Committee Report, In Re Connell 9
hypotheticals.17 FC2-3. The Committee’s factual findings and conclusions regarding these allegations follow, seriatim.
A. Findings of Fact 1. Specific Event #1: Classroom discussion of Apprendi v. New Jersey: In the early weeks of the Spring 2010 semester, in a session of his Criminal Law class, Professor Connell covered the case of Apprendi v. New Jersey. The Complainants were enrolled in this class and were present for the Apprendi discussion. The criminal offense at issue in Apprendi is one for which an enhanced penalty is authorized if it is proven that the defendant acted with the purpose of racial intimidation. The case involved a white defendant who was convicted of shooting a firearm into the home of a black family that had moved into a previously all white neighborhood. In their Formal Complaint, Complainants allege that during this discussion, Professor Connell, “said that he finds a above. We talked for more than fifteen minutes. Nadege Tandoh left and the three other students were still in the classroom. Immediately after Nadege left, Professor Connell said, “What you have to understand is that, at that time in New York, Black folk were terrorizing the rest of the population.” Jennifer said, “Well, I am sure that, in a diverse state like New York, black people were not the only ones committing crimes.” Professor Connell said “You mean to tell me that, if you saw a black man walking on the same side of the street as you, you are not going to cross the street?” At this point, one of the other students looked like she was covering up her shock. When Jennifer said “no, if I crossed the street, it wouldn’t be because of his race,” Professor Connell replied, “Oh, really? Where are you from?” Jennifer replied, “Camden, New Jersey. Lots of minorities live there, so I just don’t think like that.” Professor Connell replied, “Well, Camden is a mess.”
The Formal Complaint reads in pertinent part (FC2-3): [D]uring almost every single class, Professor Connell would name Dean Ammons as the victim in a hypothetical where he is the perpetrator who shoots her. In one hypothetical, he stated that he would scream to her, “I’m going to blow your fucking head off!” and proceeded to shoot her various times. Formal Committee Report, In Re Connell 10
person who is shooting at black folks to be less dangerous than a person who is just shooting randomly.” The Committee does not find that Professor Connell used those exact words. However, based upon Professor Connell’s First Affidavit and the Complainants’ hearing testimony, the Committee finds that during the Apprendi discussion, Professor Connell expressed his philosophical concerns about the fairness and utility of hate crime sentencing enhancements. He pointed out that it might be easier to predict the criminal behavior of one motivated by racial hostility, than the behavior of a criminal who targets random subjects. Professor Connell asked the students to consider the possibility that the higher degree of predictability might make the hate crime perpetrator less dangerous. Professor Connell raised the dangerousness question in the context of an earlier and broader classroom discussion on societal goals of punishment. In his written testimony, Professor Connell questioned whether hate crimes were truly more deserving of punishment than other crimes. First Connell Affidavit (“FCA”) at para. 20. He expressed his concern that enhanced punishment for hate crimes comes, “dangerously close to violating one of the fundamental principles of the criminal law: that we do not punish for bad thoughts alone.” Professor Connell also told the class that the establishment of hate crimes risks a public perception that victims of race-based hate crimes are a preferred class. He added that from “viewpoint of their respective victims as well as the degree of trauma or harm they may have suffered,” perspective, there was no reason to treat a hate crime defendant any differently than a defendant who was not motivated by racial hatred.” FCA at para. 20.
Formal Committee Report, In Re Connell 11
The Committee finds that Complainant Perez was offended by Professor Connell’s comments during the Apprendi discussion.18 The Committee also finds that Complainant Tandoh19 was offended by Professor Connell’s comments, but believed that he may not have realized how they came across. Tr. 6/6/11 at 146. 2. Specific Events #2: Alleged in-class comments related to People v. Goetz: The facts concerning this event are largely undisputed. Professor Connell covered the assigned New York case of People v. Goetz. The case stems from an incident on a New York City subway car during the 1980s. It was well publicized at the time. The main legal issue presented in the appellate case was self-defense. Goetz told the police that he was sitting in a subway car when a youth approached him and asked for money. The youth had three companions. Goetz said that because he feared for his life, he took out his handgun and shot each of the four youths.20 For instruction purposes, a key issue was whether, in deciding whether Goetz’s fear was reasonable, a jury could look at it from the point of view of a man living in New York City who had Goetz’s personal experiences as a crime victim. During class, Professor Connell mentioned that the four youths were black and that Goetz was white. A person can have a legitimate complaint of racial harassment even if the alleged comments are not directed at the race of that complainant. See U.S Dept. of Education, Office for Civil Rights, Racial Incidents and Harassment Against Students, 59 Fed. Reg. No.47, Mar. 10, 1994, found at, http://www2.ed.gov/about/offices/list/ocr/docs/race394.html. Nevertheless, Complainant Perez testified that she has an Afro-Latino and Afro-Peruvian heritage and that her boyfriend is black. 19 Nadege Tandoh is a black woman. 20 The pages in the Criminal Law casebook used by Professor Connell that pertain to People v. Goetz were made part of the Formal Hearing record. Goetz confessed that when he shot the youths they were trying to run away, that he never believed that any of the youths were armed, that he shot one of them repeatedly because the youth seemed unhurt and that his intent was “to murder [the four youths], to hurt them, to make them suffer as much as possible.” Formal Committee Report, In Re Connell 12
The gist of Professor Connell’s recitation of the Goetz discussion is that at some point in class he mentioned the fact that the jury acquitted Goetz of all attempted murder charges. He asked the class to think about what might explain the jury’s finding that Goetz behaved reasonably when he shot at least one victim in the back at a time when the victim was posing no threat to Goetz. Professor Connell states, “An inescapable truth of violent crime in American cities is that it is disproportionately committed by young black men. The unfortunate reality of urban crime explains why some people, of all races, fear young black men.” Professor Connell recalls saying21 that Reverend Jesse Jackson had reportedly once said that if he were approached by a group of young black men on a city street, he would cross the street in order to avoid them. FCA at para. 27-28. 3. Specific Events #3: Alleged post-class comments re People v. Goetz:
Professor Connell stayed after class that day to answer student questions, which was his custom. Tr. 6/7/11. Ms. Perez says that at that point she questioned why he had
mentioned the race of the parties in the Goetz case, maintaining the race of the youths involved should have been immaterial. Ms. Perez says that Professor Connell responded by saying to Ms. Perez, “What you have to understand is that at that time in New York, Black folk were terrorizing the rest of the population [and that] you mean to tell me that, if you saw a black man walking on the same side of the street as you, you are not going to cross the street?” FC3. Ms. Perez said that she would not. Professor Connell recalls the after-class Goetz discussion he had with Ms. Perez. He remembers repeating his views about urban crime. While he remembers saying something about crossing the street, he claims that he said to Ms. Perez, who is from According to his affidavit, Professor Connell is unsure whether this was said during or after class. Formal Committee Report, In Re Connell 13
Camden, New Jersey, “so if you were approached by a group of black male teens on a street in Camden, you would not cross the street? You wouldn’t feel like Jesse Jackson? You wouldn’t feel uncomfortable in any way?” FCA at para. 31. Jessica Amoroso and Tanya Veytsman (other students in the class) witnessed this conversation.22 Nevertheless, neither Amoroso nor Veytsman recall the specifics of the exchange between Professor Connell and Ms. Perez. Ms. Veytsman reports that while she remembers being present during the after-class discussion about Goetz, she does not recall the details of the conversation.23 Ms. Amoroso sent a message to Professor Connell stating, “I do not agree with any of the statements made by the complaining students.”24 The Committee does not view either witness as specifically contradicting or corroborating Complainant Perez’s version of the after-class conversation. Complainant Perez’s testimony concerning the conversation differs only slightly from Professor Connell’s version, mostly insofar as she disputes that Professor Connell said anything about the Reverend Jesse Jackson. Tr. 6/6/11 at 100. Yet the Complainants have the burden of proof. Because Perez was unable to recall all of Professor Connell’s
Neither Ms. Amoroso nor Ms. Veytsman were called to testify at the formal hearing. Ms. Veytsman was interviewed by Complainants’ Representative, Ned Luce on April 4, 2011. Notes of this interview (and several others) were made part of the Hearing record on May 27, 2011 when Professor Luce submitted them as part of his response to the Formal Hearing Committee’s request for information about his conversations with students regarding the Complainants’ allegations. 24 Amoroso to Connell, email, January 21, 2011. In the same email, Amoroso also expressed general support for Professor Connell and his teaching methods that she also said differed from those of other professors. She also said that she was not offended by anything he saId. Formal Committee Report, In Re Connell 14
exact words and because the complainants did not call other corroborative witnesses , the Committee will credit Professor Connell’s version .25 4. Alleged Specific Event #4: Hypotheticals involving Dean Ammons.
Complainants allege that Professor Connell used Dean Ammons, who is black, as the hypothetical victim of violent crime or attempted crime. Professor Connell admits that he used the Dean in his hypotheticals; however he denies making up a scenario in which the Dean is actually shot. The parties offer somewhat conflicting versions of the frequency of the use of these hypotheticals and of the language used by Professor Connell when he role-played someone aiming a gun at the Dean. The Committee does not find that there is clear and convincing evidence that Professor Connell used the Dean in hypothetical criminal scenarios because of her race. Therefore, the Committee believes it is unnecessary to make further findings of fact in this regard.26 5. Professor Connell’s student evaluations: The Committee has decided that student evaluations should not be considered evidence in a formal proceeding under the Code.27 Student evaluations are anonymous and are of insufficient reliability to merit inclusion in the evidence considered by the Formal Committee.28
The entire version is contained in Paragraphs 22-32 of Professor Connell’s First Affidavit. 26 The Committee recognizes that it might be disconcerting to some students when a teacher uses real persons as hypothetical victims of violent crimes. This can be compounded if the hypothetical is posed through role playing and the use of highly frightening language. 27 Student evaluations at Widener University School of Law in Wilmington are an anonymous, end-of-semester, institutional tool for collective feedback regarding various dynamics. They contain two aspects. First is quantitative, that is, where students anonymously rank the professor in various categories on a scale of 5 (best) to 1, e.g., “knowledge of subject area,” “overall effectiveness,” “respect for students,” etc. Second Formal Committee Report, In Re Connell 15
Submissions to the record on behalf of Professor Connell: Professor
Connell did not call any witnesses to testify at the Formal Hearing, which is his prerogative under the Code. Code, Section 6(d)(v)(2). Professor Connell, however, requested that the Committee call all witnesses who were mentioned but not called by the complainants. Professor Connell also provided written evidence in various forms. The Committee has considered all of this written evidence and issues its findings by placing the evidence into one of three categories: (a) affidavits from law professors; (b) affidavits from Professor Connell’s former students; and (c) electronic messages from Professor Connell’s former students.29 (a) Affidavits from law professors: Professor Connell submitted affidavits from two professors, Orin S. Kerr and Michael J. Salmanson. Professor Kerr is an experienced Criminal Law professor with impressive educational and professional is a narrative component, in which students (usually but a fraction of all evaluators) are invited to provide written detail. No names appear on the student evaluation. The law school administers student evaluations very closely; they are not made available to the classroom faculty member until after grades are submitted. The student evaluator’s names do not appear on evaluations. As a general matter, student evaluations are inadmissible in a formal proceeding. They fall outside of the Code’s requirement that the complaint be “limited to episodes of discrimination and/or harassment against only the Complainant,” and not include statements from third parties who do not expressly consent to using their remarks in a formal hearing. The evaluations are separate anonymous statements made by third party non-complainants who have not consented to their use in this proceeding, except for the Complainants. 28 Notwithstanding the Committee’s decision to ignore student evaluations, based upon their hearing testimony, the Committee does find that Complainants themselves alleged in their evaluations of Criminal Law – Spring 2010, that Professor Connell made what they viewed to be offensive comments. This suggests a contemporaneous account of their concerns. 29 As explained in footnote 7 above, the Committee, in its discretion, considered the unsworn comments contained in these emails, despite the fact that they did not fall within the specific categories of evidence we determined would comprise the record. These categories provided, however, room for the Committee to consider other items deemed appropriate. Formal Committee Report, In Re Connell 16
credentials. He reports that he receives very strong student evaluations. Professor Salmanson also has impressive credentials. His teaching experience is limited to longterm teaching as an Adjunct Professor of Death Penalty and Habeas Corpus law. The Committee finds that both of these individuals expressed the opinion that Professor Connell’s behavior and comments in the classroom were well within the acceptable range for a teacher of Criminal Law. The Committee finds these two affidavits to be of limited probative value for the following reasons: Both affiants premise their opinions on the assumption that everything contained in Professor Connell’s affidavit is true.30 Professor Herr does not teach the Apprendi case. He states that Professor Connell’s recitation of his teaching of the Goetz case is “well within the bounds of accepted practice among Criminal Law professors.” Yet, other than teaching the course himself, Professor Herr does not appear to have any expertise regarding the accepted norms of teaching criminal law31 and he himself does not share nor profess the views professed by Professor Connell. Professor Herr’s affidavit does not address the allegations concerning Professor Connell’s remarks about the Goetz case in the after-class discussion. Professor Salmanson is not a permanent member of a law school faculty. He does not teach the Goetz case. (b) Affidavits from Professor Connell’s former students: Professor Connell submitted seven affidavits from six former students. Of the six, four were students in both his Spring 2010 Criminal Law class and his Fall 2010 Criminal Neither affiant knows Professor Connell personally. They each state that they are taking his version of the facts as true because they themselves have no personal knowledge of the events. 31 For example such expertise could conceivably stem from participation in an AALS Committee on Criminal Law or experience in supervising law faculty, neither of which is listed amongst Professor Herr’s credentials. Formal Committee Report, In Re Connell 17
Procedure I class. The other two were not in Criminal Law, but one was in the Fall 2010 Criminal Procedure I class. In sum, the students from the Criminal Law and Criminal Procedure I classes all say that they were never offended by anything Professor Connell did or said in class. They did not hear other students say that they were offended either. They state that he did not make racist or sexist remarks. They thought that he was a very effective professor. One of these students recalls an occasion during which Professor Connell told the students that if any one of them were ever offended by anything he said in class, they should speak to him about it because he did not wish to cause offense. None of these students was present during the Goetz after-class discussion. For the most part, these affidavits do not address the specific comments alleged by Complainants. One student recalls that when discussing Apprendi, Professor Connell merely mentioned that hate crime statutes provide longer sentences for racially motivated crime.32 Because Professor Connell admits talking about the utility of hate crime statutes, (as discussed above) the Committee does not credit this student’s account of that discussion. In the other two student affidavits, they report that Professor Connell’s strong language and role-playing were intended to illustrate legal standards. (c) Emails from Professor Connell’s former students: Twenty-nine emails were submitted for the record.33 Five of the twenty-nine were from students who said that they were in the Spring 2010 Criminal Law class. One of the five also submitted an affidavit. In sum, these students expressed that they disagreed with the Complainants The exact quote from Danielle Oppenheim’s affidavit is, “Connell was simply telling us that using race as a basis for your crime extended your sentence. He neither agreed nor disagreed with the possibility of time added to a sentence.” 33 One of these emails was jointly signed by six students. Formal Committee Report, In Re Connell 18
allegations and that Professor Connell was one of their favorite professors. The other twenty-four emails, many of which were from students who were in the Fall 2010 Criminal Procedure I class,34 expressed similar sentiments, i.e.: that Professor Connell was a great professor, he never offended them, and they offered him their support. (d) Law School Interviews. In his capacity as Grievance Officer, Vice Dean Kelly interviewed five students: the Complainants, Ms. Veytsman, Ms. Anderson, and another fifth student. Vice Dean Kelly’s notes of those conversations provide that neither Ms. Veytsman nor the fifth student interviewed believe that Professor Connell’s conduct in his spring 2010 Criminal Law course was racially insensitive.. Vice Dean Kelly does not recall the name of the fifth student, although he recalls that this student spoke favorably about Professor Connell. B. Conclusions The Formal Complaint does not mention the specific Code sections that Complainants allege Professor Connell violated. However, pursuant to the Committee’s request for greater specificity, in their Post-hearing memorandum, the Complainants state that they are alleging violations of Code Section 4(g)(ii),(iii) and (iv). Section 4(g) is entitled, “Racial Harassment,” and begins with the following language, “In general, racial harassment consists of oral, written, electronic, graphic or physical conduct or communication relating to an individual’s race when the
Almost all of these emails were in response to Professor Connell’s email of January 18, 2011 to his Criminal Procedure I students. Professor Connell told the students about the accusations against him and that he had been placed on administrative leave. As discussed in our report’s section on alleged retaliation, Professor Connell tells his Criminal Procedure I students that he has been falsely accused and attaches his affidavit and his attorney’s response. He also offers to provide exam feedback upon request. Many of the student emails contain requests for exam feedback. Formal Committee Report, In Re Connell 19
conduct…:.” Thereafter appear four categories of circumstances (i-iv) any one of which, if established, amounts to racial harassment. 1. 4(g)(ii). Complainants’ first allegation is under Section 4(g)(ii) which prohibits conduct or communication that “has the purpose or effect of creating an intimidating, hostile, or offensive employment or educational environment.” The United States Department of Education’s Office of Civil Rights emphasizes that, “acts need not be targeted at the complainant in order to create a racially hostile environment. The acts may be directed at anyone. The harassment need not be based on the ground of the victim's or complainant's race, so long as it is racially motivated (e.g., it might be based on the race of a friend or associate of the victim).” See U.S Dept. of Education, Office for Civil Rights, Racial Incidents and Harassment Against Students, 59 Fed. Reg. No.47, Mar. 10, 1994, found at, http://www2.ed.gov/about/offices/list/ocr/docs/race394.html. Thus, our interpretation of the language in Section 4(g) is that it is not necessary for a complainant to establish that the allegedly offensive conduct was directed at any one individual, nor is it necessary that a complainant be a member of the racial group to which the conduct is directed. Complainants do not allege, nor is there any evidence, that Professor Connell had the intent or purpose of creating an intimidating, hostile, or offensive educational environment. In fact, during each of their testimonies, Complainants mentioned that they suspected that Professor Connell did not mean to offend and that he may not have realized the implications of some of his remarks. Witness Suzanne Anderson voiced a similar sentiment. Therefore, if there is a violation of Section 4(g)(ii), it would be if
Formal Committee Report, In Re Connell 20
Professor Connell’s conduct had the effect of creating an intimidating, hostile or offensive educational environment. The United States Department of Education’s Office for Civil Rights (“OCR”)has a web page entitled, “Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance.” The OCR defines a racially hostile environment as an environment where one would find, “harassing conduct (e.g., physical, verbal, graphic, or written) that is sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by a recipient.”35 Id. Widener Code’s Section 4(g)(i), uses practically identical language to describe one form of prohibited racial harassment. Complainants herein do not raise a claim under Section 4(g)(i). They do claim a violation of Section (4)(g)(ii), however, which prohibits conduct or communication that “has the purpose or effect of creating an intimidating, hostile, or offensive employment or educational environment.” Read literally, 4(g)(ii) does not require proof that the hostile environment affected a complainant’s ability to participate in or benefit from an educational activity. This may or may not be what the University intended in Section 4(g). This is puzzling because the OCR defines hostile educational environment (prohibited by 4(g)(ii)) as one that interferes with a person’s ability to benefit from educational services. Under the Code, however, interference with educational benefits is an element under 4(g)(i), (iii) and (iv), but not under the hostile environment subsection 4(g)(ii).
The Formal Committee does not find clear and
The “Investigative Guidance,” offered on this site is for those investigating alleged violations of Title VI of the Civil Rights Act of 1964. Educational institutions that receive federal money are bound by the prohibitions of Title VI. Thus the term, “recipient,” refers to an educational institution receiving federal money. Formal Committee Report, In Re Connell 21
convincing evidence that either Complainant’s educational opportunities were substantially or unreasonably limited by virtue of Professor Connell’s conduct. See discussion below. Because of the language of our Code, however, the Committee considered whether despite this, there was nevertheless a violation of Section 4(g)(ii). While the Code provides that a single incident can amount to discrimination or harassment, the Committee believes that the smaller the number of alleged incidents, the more serious the offensive behavior would need to be, to constitute a Code violation. In this regard, the Committee found the following language from the OCR’s Investigative Guidance to be helpful:
To determine severity, the nature of the incidents must also be considered. Evidence may reflect whether the conduct was verbal or physical and the extent of hostility characteristic of the incident. In some cases, a racially hostile environment requiring appropriate responsive action may result from a single incident that is sufficiently severe. Such incidents may include, for example, injury to persons or property or conduct threatening injury to persons or property. The size of the recipient and the location of the incidents also will be important. Less severe or fewer incidents may more readily create racial hostility in a smaller environment, such as an elementary school, than in a larger environment, such as a college campus. The effect of a racial incident in the private and personal environment of an individual's dormitory room may differ from the effect of the same incident in a student center or dormitory lounge. The identity, number, and relationships of the individuals involved will also be considered on a case-by-case basis. For example, racially based conduct by a teacher even an "off-duty" teacher, may have a greater impact on a student than the same conduct by a school maintenance worker or another student. Id. Formal Committee Report, In Re Connell 22
. The conduct alleged herein is the hate crime related comments; the Goetz case comments; and the alleged use of Dean Ammons in hypotheticals involving violence. Because the Committee has indicated that it did not find the use of the Ammons hypotheticals to be racially motivated, the Committee is left with examining the hate crime and Goetz comments.
To some extent, the definitional language from the OCR, when applied to the facts found herein, cuts two ways. On the one hand, the conduct was not repeated over and over, is merely verbal, and caused no physical injury. The Complainants are mature students in a graduate school. On the other hand, offensive comments from a classroom professor are of particular concern because the students cannot simply walk away in order to shield themselves from being offended. If they want to complete the course and earn the credits for which they have paid, the students are a captive audience. An important consideration is a professor’s right to free speech and academic freedom. For example, in Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit spoke to this issue and recognized, “the unique milieu of a college or university where debate and the clash of viewpoints are encouraged-if not necessary-to spur intellectual growth.” Professor Connell’s comments were made within the context of a discussion of Criminal Law cases and topics. They were not extraneous to this discussion. Therefore, based upon our assessment of the context, number and severity of Professor Connell’s remarks, the Committee does not find that they rose to the level of creating an intimidating, hostile or offensive educational environment. Formal Committee Report, In Re Connell 23
The Committee’s conclusion does not mean that we find it unreasonable that the Complainants found certain comments or actions to be racially insensitive. To the contrary, we recognize that some of the remarks might reasonably be considered to be racially insensitive. Professor Connell’s comments about the perpetrators of racially motivated crimes provide a good example. The case under discussion involved a crime of violence against a black victim motivated by the racial animus of the perpetrator. Professor Connell described a philosophy that hate crimes perpetrators were no more deserving of punishment than others. Professor Connell explained a view that from a “victim’s” and a “harm caused” perspective, there was no difference. At a minimum, this view might be perceived to be insensitive to the trauma caused to victims of violence that is based upon racial hatred. Professor Connell’s comment in the after-class discussion about Goetz may also have reasonably been viewed as racially insensitive. Even if Professor Connell were originally quoting the Reverend Jesse Jackson, by his question to Complainant Perez that she surely must cross to the other side of the street when she sees young black men approaching, Professor Connell conveyed what one might presume to be his personal belief that this was natural and reasonable. A big part of the problem here is that Bernhard Goetz, knowing they were unarmed, shot his victims while they were running away. He tried to convince the jury that this was reasonable and the jury agreed. By citing the black youth crime problem in New York City, it could appear that Professor Connell was suggesting that Goetz’s behavior could only be seen as reasonable because the victims were black. Put another way, does this mean that it may be reasonable to shoot an unarmed black would-be robber who is retreating but not one who is white? The Committee is not suggesting that Formal Committee Report, In Re Connell 24
Professor Connell believes this. However, the Committee understands how these kinds of comments might have given that impression. Indeed, testimony from one witness and an affidavit from another would tend to show the reasonableness of the Complainants’ concerns. Complainants offered Suzanne Anderson as a witness at the Formal Hearing. Ms. Anderson – who is white – was enrolled in Professor Connell’s Criminal Procedure I class in the Fall 2010 semester. The Committee has considered her testimony and finds that during the first two months of that semester she perceived that on numerous occasions36 Professor Connell acted out facts of cases in the textbook and in the course of doing so he would sometimes use a voice and gesture in a way that one could perceive as lampooning young black men. She described his lampoons as a “chicken George” routine and added that when doing this, he spoke of “black dudes” or “black folk” by drawing out the word, “black,” in a mocking way.37 She perceived that he was acting out the role of a young black man who was a defendant in a criminal case. Ms. Anderson found Professor Connell’s behavior to be racially insensitive. On October 21, 2010, Anderson spoke up about this in open class during a Criminal Procedure I session. She said he responded to her complaint in open class with respect and without anger. Anderson emailed Professor Connell on October 25, 2011 to say she was uncomfortable that she made her complaint publicly in open class and she again expressed her objections to his role-playing. Ms. Anderson did not receive a response from Professor Connell and the objectionable role-playing ceased for the duration of the semester. Her exact words were, “it happened frequently…it seemed like every class. It was probably less than that.” Transcript at 30-31. 37 Another student in the class, Mr. Elbardassi, filed an affidavit that essentially purports to impeach Ms. Anderson’s credibility. See Elbardassi Aff. Formal Committee Report, In Re Connell 25
Complainants submitted an affidavit from Melissa D. Strickland, a 2007 graduate of Widener Law School. Strickland chose not to testify at the Formal Hearing. While she was a student at the Law School, she was enrolled in two of Professor Connell’s classes, Criminal Law – Spring 2004, and Criminal Procedure – Fall 2004. In her affidavit, Strickland states, “In these classes, Professor Connell made what I consider racist remarks.” She provided two examples: (1) Professor Connell’s in class hypotheticals almost always involved a crime perpetrator named Tyrone. According to Strickland, Tyrone is a name often associated with African-American males; (2) When asked by a student why a crime victim was out so late at night, Professor Connell responded, “I don’t know, picking cotton?” Professor Connell denies Strickland’s accusations. TCA para 2-5, 19-20. He admits using the name “Tyrone” in offering factual examples to illustrate several different legal concepts. However, Professor Connell argues that the name Tyrone is not a stereotype for African-American males and each time he used the name, he was recounting the facts from an actual case he handled in which the defendant’s name was, in fact, Tyrone. Professor Connell denied making the alleged comment about, “picking cotton.” The Committee does not find clear and convincing evidence that Professor Connell used the name Tyrone to depict a hypothetical black perpetrator. The Committee also does not find clear and convincing evidence that Professor Connell made the “picking cotton,” comment. We do, however, find that Strickland perceived some of Professor Connell’s remarks to be racially insensitive. The Committee notes that
Formal Committee Report, In Re Connell 26
Strickland enrolled in Professor Connell’s Criminal Procedure class after being in the Criminal Law class in which the offensive remarks were allegedly made.38 2. 4(g)(iii) and (iv). Complainants also raise claims under Section 4(g)(iii) and (iv). The Committee does not find that these claims are substantiated by clear and convincing evidence. As to subsection (iii), we find no evidence that Professor Connell’s conduct had the purpose or effect of substantially or unreasonably interfering with either Complainant’s work or academic performance. Both Complainants completed Professor Connell’s Criminal Law course and did well, earning better than average grades. As to subsection (iv), we do not find clear and convincing evidence of adverse affects on the Complainants’ educational opportunities. There was some evidence of adverse affects. Complainant Tandoh testified that she chose to skip the Crimnal Law class one day when the assigned reading for the day involved a black defendant who she feared Professor Connell might poke fun of. She wanted to avoid the experience of feeling deeply offended were this to occur. She also testified that she postponed taking Criminal Procedure in order to avoid enrolling in another class taught by Professor Connell. She took Criminal Procedure in Spring 2011 with a different professor. Finally, the Committee imagines that either or both Complainants may have avoided raising their
Ms. Strickland’s affidavit does not explain why she chose to take Professor Connell’s Criminal Procedure Class after having had him for Criminal Law. Strickland Aff. It is possible that Strickland’s enrollment in a second class taught by Professor Connell is evidence that she was not in fact offended by his teaching. On the other hand, it is possible that Professor Connell’s class was the best or only fit for her schedule and/or her planned sequence of required courses. Ms. Strickland was due to testify in person at the hearing. Upon notice of her intended testimony, Professor Connell submitted crossexamination questions for Strickland to the Committee and the Complainants’ representative. Shortly before the hearing, it was reported to the Committee that Strickland would not attend because she did not want to miss work and take days away from her anticipated maternity leave. Formal Committee Report, In Re Connell 27
hands in Professor Connell’s class and/or approaching him with questions or for help after class. These affects are not insignificant. Nevertheless, the Committee finds that they are not substantial enough to support a finding that Professor Connell violated subsections (iii) or (iv). IV. Sexual Discrimination Claim The Code defines “sexual discrimination” in general as “the denial of normal or customary … educational opportunities, benefits, privileges or proceedings to an individual on the basis, in whole or in part, of such person’s gender.” Code, Section 4(b). Sexual discrimination includes “the creation of discriminatory … academic or educational conditions … and or the use of discriminatory evaluative standards in … academic or educational decisions or settings.” Complainant Jennifer Perez claims that Professor Connell subjected her to sexual discrimination under the Code, namely, by creating “discriminatory educational conditions” against her because of her gender. Tr. 6/7/11 at 108; Comp. Br. 17. The Formal Complaint contains specific allegations regarding two events relevant to the claims of sexual discrimination. These relate to an in-classroom (1) hypothetical in the context of the battered woman defense syndrome,39 and (2) remark in the context of statutory rape.40
The Formal Complaint reads in pertinent part (FC3): One day, during class, students were giving their opinions about a legal matter. Every student who commented agreed with Professor Connell’s opinion on the matter. Eventually, Jennifer raised her hand and respectfully disagreed with Professor Connell’s opinion. Right after Jennifer disagreed with him, Professor Connell developed a hypothetical where Professor Connell decided to shoot Jennifer (of all people). He walked in front of Jennifer’s seat, pointed his hands (in the shape of a gun) at her face, and screamed “Die Bitch!” One could here [sic] students in the class gasping at what he had just done. At the end of class, people came up to Jennifer and shared that they Formal Committee Report, In Re Connell 28
Ms. Perez claims that three points in particular demonstrate sexual discrimination. First, Ms. Perez claims that Professor Connell created discriminatory educational conditions based on gender. In particular, Ms. Perez claims that Professor Connell was more inclined to “shoot … down” answers from women. Tr. 6/6/11 at 66. Ms. Perez also says that Professor Connell was more likely to be dismissive about, or to ridicule, classroom participation by women: [W]hen a person [who disagrees with him] was a woman … [t]he way he would react to it was way different from a male. If a male were to disagree with a point he made, he would still disagree with that person. He wouldn’t change his mind, but he would do it in a way that was much more respectful than [with] a female student. I felt generally he wasn’t respectful to women a lot of the time. Tr. 6/6/11 at 124.41 Ms. Perez also says that Professor Connell demonstrated his lack of respect for women in class by showing “mannerisms” such as “grimacing” when women answered in class. Tr. 6/6/11 at 121-22. Ms. Tandoh’s testimony corroborates Ms. Perez’s account. Ms. Anderson42 also states that Professor Connell told a story in which he referred to a peace officer as a “lady cop,” but that the “lady part was peripheral,” and that “no woman spoke up … or thought it was inappropriate. This kind of cursing and intimidation was a regular occurrence in the classroom, especially the terms “fuck” and “bitch” and “shit.” The Formal Complaint reads in pertinent part (FC2-3): “One day, the class briefly discussed Statutory Rape. During the discussion, Professor Connell said, ‘I don’t get it. I mean, her parents probably didn’t care. They probably know their daughter is a dirty little whore.’ ” 41 Ms. Perez also describes a particular event where she says Professor Connell had a strong reaction to an incorrect response provided by a woman. Tr. 6/6/11 at 124-26. 42 Ms. Anderson states that the University’s Legal Counsel, on behalf of the University, agreed to her request that the University provide her with legal protection as a condition to her testifying in this matter. Tr. 6/6/11 at 23 (“If he [Connell] is going to sue me if I come forward and retaliate against me … [I] need some protection from the University … University Counsel promised to provide me with legal counsel. … the University agreed.”). Formal Committee Report, In Re Connell 29
complained.” Tr. 6/6/11 at 35. 43 Dean Williams also testified as to concern from another female student about the gender dynamics in Professor Connell’s fall 2010 Criminal Procedure class. Tr. 6/9/11 at 21. Professor Connell denies any such in-classroom dynamic. He correspondingly provided supportive remarks from several women who were students in both his Criminal Law and Criminal Procedure courses, none of whom corroborate that Professor Connell treated students who are women differently than students who are men. Moreover, Ms. Anderson’s testimony corroborates Professor Connell. Following an in-class dispute Ms. Anderson had with Professor Connell regarding race-based profiling, Ms. Anderson notes that “Professor Connell was very cool … I was kind of impressed.” Tr. 6/6/11 at 16. In fact, Ms. Anderson says that Professor Connell “handled [that disagreement] with more respect than I handled him … I thought he handled it well and I was satisfied.” Tr. 6/6/11 at 16. She says that during the exchange, “it was perfectly collegial. I never got any vibe from him that he had any kind of bad feelings towards me. I was very – I was fine.” Tr. 6/6/11 at 17. Ms. Anderson says that Professor Connell “did not embarrass me,” and was “very respectful.” Tr. 6/6/11 at 16. Concerning whether she detected any sexism in class, Ms. Anderson concluded: “I was blind to it. I didn’t really notice that. So I let it go,” Tr. 6/6/11 at 18, and that “I don’t know if it was sexism.” Tr. 6/6/11 at 33. Ms. Anderson expressed her opinion that “I don’t think Larry Connell is a bad guy.” Tr. 6/6/11 at 20, and that she does not want Professor Connell to be “removed.” Tr. 6/6/11 at 27. An affiant for Professor Connell, Mr. Samuel Elbardissi, testified that “I have been with this student in other classes and her approach, at times, is to take personal the topics at hand. When such a situation arises, her tone and aggressiveness [sic] to attack the situation that is very personal to her …” Elbardissi Aff. At para. 34-36. He also describes this same student as being generally disruptive in class. Elbardissi Aff. At para. 38. While it is not clear from his testimony, it is probable that he aims to describe Ms. Anderson. Formal Committee Report, In Re Connell 30
Second, Ms. Perez claims that Professor Connell’s teaching “instills acceptance of … chauvinism.” FC2 For example, Ms. Perez contends that Professor Connell’s use of the word “bitch” was “a regular occurrence in the classroom.” FC2 .While Professor Connell acknowledges using the word “bitch,” in class, he says he did so solely “pedagogically.” The example he provides concerns assigned material concerning the role of mens rea, or mental state, in determining the appropriate charge when one kills another because of adultery. By Professor Connell’s account (FCA para. 35): Like most first-year criminal law courses, we study the topic of voluntary manslaughter and the controversial “adultery” provocation. We discuss the rule’s origins in male homicidal violence against women, and the gender bias the rule continues to promote. We discuss how provocation as a mitigating principle was perceived by some courts to be a partial excuse, while other courts viewed it as a partial justification.
During class Professor Connell expressed his concerns with the partial excuse/partial justification dichotomy. He states: “In class I have criticized, not endorsed, the concept of adultery as a partial justification because it trivializes and demeans the value of the life of women.” FCA para. 37 (emphasis in original). The reason being, Professor Connell explains, is that (FCA para. 36): When applied to the “adultery” provocation specifically, these distinctions are troubling. If one perceives adultery as a partial excuse for an otherwise intentional killing, the outcome depends on the killer’s state of mind and whether he actually lost the capacity for self-control. In contrast, if one perceives adultery as a partial justification, the outcome turns on one’s belief about the role of the victim in connection with her death. Adultery as a partial justification implies that the victim was at least partially responsible for her own death. In plain English, the partial justification theory for manslaughter can be characterized as “the bitch deserved it.” Professor Connell also says that it is possible that he has “used the word ‘bitch’ in the context of discussing self-defense and women who have been victims of abuse by Formal Committee Report, In Re Connell 31
their partners.” FCA para. 38. In particular, he told his spring Criminal Law class about an actual Delaware case in which he served as co-counsel that involved a woman “who shot and killed her unarmed partner because she feared he was about to kill her.” FCA para. 38. Evidently, the man had sexually assaulted both the woman and her daughter. FCA para. 38. The woman fled the state, only to be forced to return at gunpoint, with threats to kill her “like a goddam dog” if she tried to flee again. FCA para. 38. The man then regularly beat the woman. FCA38. During a hearing in the case, the man’s mother was asked “if she considered the beatings her son gave Susan to be excessive.” FCA para. 38. Her answer: “Not any more than she deserved.” Professor Connell explains the circumstances in the case to be “sordid,” and states that “[i]t is possible that I used the word “bitch” in either this discussion … or in a discussion of a series of battered women self-defense cases in the textbook.” FCA para. 41. Professor Connell states (FCA para. 41): If I had used that term – and I simply have no recollection whether I did – it would have been in reference to the hateful and wrongful attitude the male abusers had toward their female victims, and most certainly would not have been used with the intention of demeaning women in general or any student in particular. Ms. Perez believes another incident demonstrates that Professor Connell sexually discriminated in the classroom during an in-class discussion of statutory rape. A student in Professor Connell’s spring Criminal Law course provides background: As a class, it seemed we understood intent and its requirement in the basic sense, but when it was coupled with mistaken identity or insanity then the entire class became a little lost. For example, when dealing with rape, one of the cases/hypos we talked about involved an older rape statute a person violated by having sex with a child under sixteen. The question presented to class was whether the person violated [the] statute and had the necessary mens rea to commit rape if he truly believed that the girl was over the age of 16. I cannot remember the actual outcome of that discussion, but I do remember that as a class we had a hard time Formal Committee Report, In Re Connell 32
separating the actual crime, having sex with a child under 16, and the defendant’s mens rea, of believing she was over the age of 16. Dernbach Aff. Para. 2. Ms. Perez claims that Professor Connell said, “I don’t get it. I mean, her parents probably didn’t care. They probably know their daughter is a dirty little whore.” FC2; Tr. 6/6/11 at 61. Ms. Perez states that she “thought it was really inappropriate considering how many people in our society have been raped or molested by family members … You never know who in your class has gone through that.” Tr. 6/6/11 at 61. To Ms. Perez, this alleged statement confirmed to her “How right I was and wrong he was.” Tr. 6/6/11 at 60. Professor Connell denies ever making such a statement. FCA para. 73. No one, besides Ms. Tandoh, corroborates Ms. Perez’s recollection of this event. Tr. 6/6/11 at 148.44 Third, Ms. Perez claims that Professor Connell was openly hostile toward her in a way that can be considered under the Code as possibly denying her of normal or customary educational opportunities in the classroom. Ms. Perez states that Professor Connell’s “behavior made [her] feel intimidated and offended,” and that “[o]ther students even noticed the hostility he had towards” her. Therefore, Ms. Perez contends, she “had to overcome this constant intimidation every time she raised her hand,” which “created a hostile educational environment.” FC1.
Ms. Daniel Oppenheim, a female student in Professor Connell’s spring 2010 Criminal Law course, recalls no such statement. Oppenheim Aff. par. 45. There was some confusion about this event. At one point Vice Dean Kelly contended that the “dirty little whore” was black. The complainants have since clarified that they “have never alleged Prof. Connell said the victim was black. Vice Dean Kelly incorrectly referenced the victim’s race at some point, which unfortunately was not clarified in his testimony.” Comp. Br. 20 (internal reference omitted). Formal Committee Report, In Re Connell 33
Professor Connell would often improvise a hypothetical spontaneously during his classroom teaching: “When the Power Point slides, pre-written hypos, or even actual cases Professor Connell worked on failed to help us understand the subject, he began to make up new hypos on the spot.” Dernbach Aff. Para. 3. Professor Connell would often involve the student who had asked a question or otherwise seemed confused in hypotheticals. One student recalls: These hypos were simple, with one fact and one variable. Professor Connell would walk/move closer to whichever student seemed confused or tried to rewrite the hypos, and involve that student in the actual hypo. It was like a one-on-one conversation between the student and Professor Connell. He would tell the student, “ok, you are the victim and I (Professor Connell) am the defendant and I said ‘die bitch’ and shot you.” Dernbach Aff. Para. 4. In particular, Mr. Dernbach found Professor Connell’s use of improvisational hypotheticals to be effective: There were a few times when some of the students began to change even the simple hypos around and begin to confuse themselves a little. … When that happened, Professor Connell was very blunt … as in a straight no, and then he tried another simple hypo when there was no question as to the defendant’s mens rea, in the hope that the student would just focus on the simplicity of each element, of whatever crime we were working on at the time, and try and understand those concepts before adding another variable. … For most of the class, these hypos worked. Dernbach Aff. Para. 4. One event involving an improvised hypothetical in particular, Ms. Perez maintains, shows that he was hostile toward her on the basis of her gender. During the discussion of the battered woman’s syndrome defense, Ms. Perez contends that Professor Connell said something about how self-defense is a less viable defense for abused women who do not leave their abusive environment.45 Tr. 6/6/11 at 59, 98. This led Ms. Perez to
Ms. Perez does not recall the exact content of this alleged remark. Formal Committee Report, In Re Connell 34
conclude that Professor Connell was “obviously against” the battered woman syndrome defense, because, it would lead to “open season on men.” Tr. 6/6/11 at 59; Tr. 6/7/11 at 95. By Ms. Perez’s account, “every student who commented agreed with Professor Connell’s opinion on the matter.” FC3. Ms. Perez does not remember whether this discussion was based on an actual case. Tr. 6/6/11 at 59; Tr. 6/7/11 at 121. Ms. Perez then states that she “raised her hand and respectfully disagreed with [him].” FC3. Ms. Tandoh corroborates Ms. Perez’s version of this event. Tr. 6/7/11 at 52-53. What happened next, Ms. Perez says, is that Professor Connell openly disagreed with her, and was then dismissive about the point she was trying to make, that many victims of abuse feel trapped and unable to flee. Ms. Perez states that Professor Connell then “developed a hypothetical where [he] walked in front of [her] seat, pointed his hands (in the shape of a gun) at her face, and screamed “Die Bitch!” FC2; Tr. 6/6/11 at 60, 74, 98).46 Ms. Tandoh – who sat in the row directly behind Ms. Perez – corroborates Ms. Perez’s account of this event. Tr. 6/6/11 at 60. Ms. Perez also felt as though Professor Connell was calling her “a bitch,” confirming her belief with Ms. Tandoh. Tr. 6/6/11 at 59 (“Did he just call me a bitch?”). Joseph Dernbach, another student in the class, also recalls Professor Connell using this expression once in a hypothetical involving a student. Dernbach Aff. Paras. 4 & 6. Ms. Perez says this event made her feel as though Professor Connell “tried to humiliate” her, and “like he had no respect” for her. Comp. Br. 18; Tr. 6/6/11 at 60. Ms. Perez asserts that “the use of the word “bitch” toward a female student who has recently disagreed with a professor, even if in a hypo, constitutes a discriminatory educational
Ms. Perez does not recall the exact facts of the hypothetical. Tr. 6/6/11 at 59. Formal Committee Report, In Re Connell 35
condition under the Code, as it is both intimidating and based on the student’s female status.” Comp. Br. 18. Professor Connell does not deny using the expression “die bitch” during an inclass hypothetical. He says, however, that he has only used that expression pedagogically, As one student from the class explains: “Professor Connell made several comments like ‘die bitch,’ or ‘die magical pumpkin’ while he was playing the role of the defendant in his hypos.” Dernbach Aff. Para. 6. Professor Connell says that he has “never addressed the word [“bitch”] to, nor used the word in connection with, any student.” FCA34. A student in the class corroborates Professor Connell’s account, testifying: He never actually said his name in the conversation, but referred to himself as the defendant, when talking about the hypos. Then he would go on to ask the student about the elements of murder, and then finally ask the student if he, as a defendant, had the mens rea to meet the requirements of intentional murder. Once the student began to understand the question and reply with some type of confidence, he would step back to the front of the room and open the hypo up to the entire class for discussion. Dernbach Aff. Para. 4. Other women enrolled in Professor Connell’s Criminal Law course submitted affidavits to dispute the allegation that Professor Connell teaches in a sexually discriminatory fashion, stating that they did not detect any gender bias in his courses. These include Ms. Hall at para. 5 (“I never once was offended by a single word Professor Connell stated in the entire semester in Criminal Law”); Ms. Ramsay at para. 5 (“(“Professor Connell was one of the best and most effective professors I have ever had. He conducted himself in a professional manner, and I never heard him make a racist or sexist remark in either Criminal Law or Criminal Procedure.”); and Ms. Oppenheim at 11 and 38 (“I never once felt that he was a racist or sexist or that he brought up the sex or Formal Committee Report, In Re Connell 36
race of defendants or victims based upon improper reasons; never once did I feel intimidated by anything that Connell did and I especially didn’t feel anything negative from Connell regarding my gender.”) Many other women who were students in Professor Connell’s 2010 Criminal Law and/or Criminal Procedure courses sent him messages in which they say they did not detect gender bias. For instance, Ms. Jessica Amaroso (Ms. Tandoh’s former friend who sat directly behind Ms. Perez), remarked that she “does not agree with any of the statements made by the complaining students.” Amoroso to Connell, 1/18/11. As a general matter, Professor Connell does not deny using coarse language and violent hypotheticals. He states, however, that “the study of criminal law requires discussion of violent, degrading human behavior that may offend normal sensibilities.” FCA para. 8. Indeed, he says that “the great bulk of cases and examples in which these relationships can be explored involve violent, assaultive conduct that often results in death. They involve reprehensible behavior and deplorable results.” FCA para. 10. Several of Professor Connell’s students wrote in either affidavits or emails to him that they believed that his dramatic way of presenting concepts helped them to learn and to remember those concepts. See e.g. Shehata Aff. Paras. 6-7; Dernbach Aff. Para 9. Moreover, Daniel Shehata testified: Professor Connell is a very good, respectful, and knowledgeable professor. I took both his Criminal Law and Procedure classes, and I was never offended in any way by his teaching methods. He taught Criminal Law in an interesting and understandable way. In all of my classes with Professor Connell, he was very respectful toward all students. I have never heard anyone referring to Professor Connell as being disrespectful or offensive in any way. Shehata Aff. Paras. 6-7.
Formal Committee Report, In Re Connell 37
In support, Professor Connell has submitted affidavits from two law professors (Professors Kerr and Salmanson) that are of the opinion that Professor Connell’s “classroom methodology is within the mainstream of the academy nationwide regarding his subject matter.” Connell Br. 2; Kerr Aff.; Salmanson Aff.. Professor Salmanson, an adjunct professor at the University of Pennsylvania who used to work at the NAACP Legal Defense Fund, puts it this way: [I]n my diversity training, we talk about how certain words can have a different impact on the listener in different context and to whom they are directed. This includes terms such as “bitch” …. The point is, you can’t have the pedagogical discussion without using the actual words. Salmanson Aff. Para. 14 Professor Williams, Assistant Dean in the Office of Student Affairs, confirms that no student (other than Ms. Perez, in October 2011), filed a written complaint about gender bias or any other form of harassment or discrimination about Professor Connell’s spring 2010 Criminal Law course. Tr. 6/9/11 at 41. Dean Willams testified that during her 5 years in that office, she has never previously received nor heard of a written
harassment or discrimination complaint concerning Professor Connell, and that she never had occasion to speak with Professor Connell about harassment or discrimination.47 Tr. 6/9/11 at 41. Similarly, Vice Dean Kelly says that as far as he knows no student had ever made a harassment or discrimination claim against Professor Connell, and that prior to
Dean Williams, however, testified that last fall she had received a verbal complaint from a student about Professor Connell’s not calling on women. Tr. 6/9/11 at 21. Associate Dean Susan Goldberg testified similarly. Goldberg Aff. para. 6. Professor Connell was not made aware of any such complaint. Tr. 6/9/11; Tr. 6/9/11. Formal Committee Report, In Re Connell 38
this matter he never had occasion to speak with Professor Connell about harassment or discrimination. Tr. 6/9/11 at 198-99.48 The Code defines “sexual discrimination” as to engender a “denial of normal or customary … educational opportunities, benefits, privileges or proceedings to an individual.” Code, Section 4(b). The Committee does not find that there is “clear and convincing evidence” that Professor Connell’s conduct denied Ms. Perez of any educational opportunity, benefit, privilege or proceeding.” The Committee found Ms. Perez to be a credible witness. However, even assuming the truth of her testimony related to sex discrimination, the Committee is unable to conclude that there is clear and convincing evidence that she was denied educational benefits due to her gender. 49
Professor Connell challenges Ms. Perez’s account of events and credibility, writing that her : Allegation still contains no context whatsoever. According to [Ms. Perez] the class was discussing “a legal matter,” students were expressing “opinions,” and [she] disagreed with my “opinion.” Moreover, students allegedly “gasped” at my behavior, while other unnamed students “shared [with Ms. Perez] that they thought it was inappropriate.” One would think that the details of a class during which an event as traumatic to [Ms. Perez] as alleged would be etched in their minds, yet [Ms. Perez] provide no such details. Moreover, one would think that such an inappropriate public display by a professor would have prompted the complainants to tell the Dean of Students. At the very least, one would expect other students who were not the target of such allegedly inappropriate behavior would have complained to the Dean of Students. Yet there is no allegation that such a complaint was ever made. To this date, I have never been informed by the administration that such a complaint was ever made. Connell Aff. 3/24/11 at para. 19. The Code defines “sexual harassment” generally as “unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome sexually motivated physical conduct or other unwelcome oral, written, electron, graphic or physical conduct or communication of a sexual nature …” Code, Section 4(c). Toward the close of her hearing testimony, Ms. Perez mentioned her belief that Professor Connell subjected her to sexual harassment under Section 4(c) of the Code. Tr. 6/7/11 at 107. (Stating belief of being subject to sexual harassment because “[Professor Connell Formal Committee Report, In Re Connell 39
The Committee finds that on one occasion, Professor Connell was acting out the role of an angry and emotionally charged husband who returns home to find his adulterous spouse in a compromising position. The Committee finds that as part of this role play, he pointed his fingers toward Ms. Perez, pretending to be holding a pistol. While pointing at her, he said, “die bitch.” The Committee does not find clear and convincing evidence that Professor Connell pointed to Ms. Perez because she had just disagreed with him. Further, the Committee does not find that by making this comment, Professor Connell was condoning the use of the word, nor was he endorsing violence or intimidation of women. That said, the Committee is of the view that the expression “bitch” may be viewed as connoting an endorsement of intimidation or violence against women, and that directing the expression toward a female student in a classroom setting is inappropriate and should be avoided unless substantially related to an important educational end. V. Retaliation The Complainants allege that Professor Connell has “retaliated” under the Code. The Code prohibits retaliation for filing a complaint or participating in an inquiry with regard to alleged discrimination or harassment.
attacked me because I am a woman.”). Ms. Perez, however, seems to have dropped this claim. Ms. Perez’s closing brief makes no mention of, and does not present argument or evidence to support, a claim of sexual harassment. Moreover, the Formal Complaint makes no mention of sexual harassment. Thus, this claim, if it ever existed, is deemed waived. Even if a claim of sexual harassment weren’t deemed waived, the Committee concludes that there is no evidence, not to mention clear and convincing evidence, to support any such claim. Formal Committee Report, In Re Connell 40
The University prohibits retaliation against any individual who files a complaint in good faith or who participates in a discrimination and/or harassment inquiry. Any retaliatory action may be the basis of another complaint under this Code. Code, Section 8.50 The complainants have made several retaliation claims. In brief, they allege that Professor Connell has retaliated by (1) publishing information to other students detailing what transpired with his employment status, and describing what he termed, “preposterous accusations”; (2) threatening the students with lawsuits in the press and other external data outlets; and (3) serving subpoenas upon them at the beginning of their final exam period. Complainants’ Br. at 20. The Code does not define “retaliation.” Thus it involves definitional and application issues. How should the Committee spot retaliation in the commitment or breach? To evaluate properly the claims, the Committee must articulate an understanding of what the term means (or might mean) under the Code. It needn’t limit retaliation solely to say, bad grades. Beyond that, the parties disagree about the scope of the term. Complainants would define "retaliation" as "any action that would deter filing a complaint. Professor Connell would define it as resulting in "tangible adverse action.” Both interpretations derive from retaliation in the Title VII employment context, not the educational student/faculty context. Neither approach seems superior. An "any action" approach is too broad and too subjective. Besides being unbounded, an "anything goes" standard is also temporally indefinite. Under that standard, retaliation could be virtually anything and could occur at The Code also provides: “The University prohibits retaliation against any individual who files an informal or formal complaint in good faith …” Code, Section 5(a). Formal Committee Report, In Re Connell 41
any time, even decades from an alleged event. On the other hand, a “tangible adverse action” standard would in essence enable retaliation short of discreet educational or participatory harm, which seems at odds with the notion of encouraging invocation of the Code. Given the lack of clarity on the meaning of “retaliation” under the Code, the Committee turned elsewhere. The U.S. Department of Education, Office for Civil Rights, and the National Association of Attorneys General, has issued guidance that provides in part: “Retaliation or reprisals can include threats, bribes, unfair treatment or grades, and further harassment such as ridicule, pranks, taunting, bullying and organized ostracism." Likewise, the United States Supreme Court has explained an anti-retaliation provision in the Title VII context as one that “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Factual findings and conclusions concerning retaliation follow. 1. Sending Students Email of January 18, 2011: The Complainants claim that there was a threatening social climate in the Law School due to Professor Connell’s widely circulated e-mail of January 18th, 2011. In that email to his students Professor Connell noted that a complaint had been filed against him by Formal Committee Report, In Re Connell 42
“…two unnamed students from my Criminal Law class of spring 2010. The students allege that I engaged in a pattern of unprofessional, racist, and sexist conduct, as well as threatening behavior. They falsely quote and take out of context remarks during the spring semester 2010. In Tab A you also will find the response by my attorney, denying the preposterous accusations.” Ms. Tandoh testified that after the distribution of Professor Connell’s email, it became the talk of the campus. In sum, she heard many people speculating about who the students were and she had reason to believe that many students believed that she was one of the complaining students. Much of the talk on campus was critical of the complaining students. Tr. 6/6/11 at 198-99. 2. Publicly Threatening Litigation: The Complainants also claim retaliation in the form of threats by Professor Connell personally or through his attorney in the press before and after the filing of their formal grievance. In the first instance, before Professor Connell and his attorney, Thomas Neuberger, were aware that a formal grievance had been filed, the attorney told a reporter from the National Law Journal, “We’re trying to figure out who those two students are right now. We’ve got it narrowed down to three. We can sue the students for defamation in state court immediately. We’re not going to sit back and be a punching bag on this.” Karen Sloan, Panel Recommends Against Dismissal of Widener Professor—For Now, Nat’l Law Journal, March 10, 2011. The attorney was well aware of the University’s Code, as he noted how it worked in the same press release. In the second instance, after Professor Connell and Attorney Neuberger were aware that the formal claim had been filed, Mr. Neuberger told the same reporter, “he [Connell] is preparing to bring defamation lawsuits against those two students.” Karen Sloan, Widener Law Professor Faces Renewed Charges Over Classroom Conduct, Nat’l Law Journal, March 16, 2011. Formal Committee Report, In Re Connell 43
3. Service of Subpoenas: The Complainants also allege retaliation in the timing and manner of the service of deposition subpoenas. The subpoenas were served at the commencement of the Law School’s final exam period and served by a process server, despite the fact that an original Notice to the Complainants had offered less formal service and the time frame for them to take advantage of the less formal option had not yet expired.51 The Committee finds that the Complainants have presented credible testimony and have met the Good Faith threshold as it relates to their claims of retaliation. Their testimony included descriptive statements of being fearful of recrimination by fellow students and their need to delay the taking of their final exams, as they lost focus. They also testified to considering retracting their claims due to the retaliation actions. B. Conclusions 1. Email Message to Students The Committee finds Professor Connell’s e-mail message to the student body to constitute retaliation under the Code. Professor Connell could have explained his situation to his students without using language that would have the foreseeable effect of identifying the complainants. The record suggests that Complainant Tandoh was the only black female in Professor Connell’s spring Criminal Law class.
The Complainants each received an email from Mr. Neuberger asking them to contact him about accepting service of his subpoena to appear for a deposition. The email asked them to respond within 7 calendar days. Neuberger to Tandoh and Perez. Complainants say that they were served by a process server, Ms. Tandoh at her home and Ms. Perez on campus, before the expiration of 7 days. At the time they received the email about the subpoena, the Complainants did not have counsel to represent them in any collateral proceedings. They obtained counsel, hired for them by Widener, just after and in light of Mr. Neuberger’s email. Tr. 6/6/11 at 83-84. Formal Committee Report, In Re Connell 44
In 2001, the United States Court of Appeals for the Sixth Circuit decided a case involving an accusation of retaliation with facts similar to those presented here. See Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001). In that case, a college professor accused of sexual harassment posted a notice about it in the school’s hallway and posted his response as well. He deleted the name of the complaining student. In holding that the college’s interests outweighed the professor’s right to speak his mind, the Court stated: “In the matter before us, we believe that Defendants' [college] purported interests, including maintaining the confidentiality of student sexual harassment complaints, disciplining teachers who retaliate against students who file sexual harassment claims, and creating an atmosphere free of faculty disruption, outweigh Plaintiff's [professor] purported interests.” Id. at 823. 2. Threats of Litigation The Committee also finds that the threats to sue that Professor Connell communicated to the media were also retaliatory actions. The release that preceded the filing of the claim could have been construed by a reasonable person to have the intent or at least the effect of dissuading the Complainants from filing a formal grievance. The release after the grievance was filed could also be construed by a reasonable person to have the intent or effect of intimidating the Complainants into retracting their action. The Committee is concerned that such actions could serve to discourage students, or other potential complainants, from taking action to enforce their rights under the Code. 3. The Subpoenas. The Committee does not find that there is clear and convincing evidence that the timing or service of the subpoenas constitutes retaliation under the Code. The Committee questions the timing of Professor Connell’s service of Formal Committee Report, In Re Connell 45
process upon the complainants insofar as the complainants believe it was calculated to cause disruption to the Complainants’ studies and preparation for final exams. The Committee recognizes that Professor Connell has a right to use the civil justice system. Commencing an action against the Dean52 does not Constitute “threats, bribes, unfair treatment or grades, and further harassment such as ridicule, pranks, taunting, bullying and organized ostracism," directed at the complainants. Moreover, receiving the inevitable subpoena to appear as a fact witness is not in and of itself clear and convincing evidence of retaliation. Professor Connell has asserted certain legal rights. He is entitled – unless the case is dismissed at the pleadings stage – to seek discovery, the bedrock of the State of Delaware’s adversative civil justice system. VI. Procedural Matters A. Timing. The Committee has some unanswered questions about the course of events as it pertains to timing. The Code provides for three processes. First is a confidential informal process wherein a student might raise a concern that needn’t be in writing nor communicated to a faculty member in question. Code, Section 5(a). Second is an “informal complaint.” Code, Sections 5(b)-(i). An informal complaint may commence simply by “bring[ing] the matter to the attention of a Grievance Officer.” Code, Section (b). This results in a confidential “initial discussion” that produces no written record. Code, Section 5(d). If, following the initial discussion, a complainant “decides to proceed … the Complainant should submit a written Complaint to the Grievance Officer.” Code,
The Committee notes that on July 5, 2011, Professor Connell filed a motion to add Complainants Perez and Tandoh as defendants in his law suit. The Committee has not taken this into account in any of our decision-making. We do this because it was not formally added to the retaliation allegations and consequently Professor Connell would not have had the opportunity to argue why this new development is not retaliatory. Formal Committee Report, In Re Connell 46
Section 5(e). On the other hand, “[f]ailure to submit a written Complaint constitutes forfeiture of consideration for redress under the procedures set forth herein for informal grievances.” Id. A complaint must be in writing, submitted in the form specified in the Code, and signed. Id. An informal complaint “must be limited to episodes of discrimination and/or harassment against only the Complainant or it will be rejected by the Grievance Officer.” Code, Section 5(f). In addition, an informal complaint cannot refer to “episodes of discrimination and/or harassment against persons other than the Complainant [unless] accompanied by the written consent of such other individuals.” Id. Once the Grievance Officer determines that an informal complaint complies with these requirements, he is supposed to “transmit copies of the Complaint to … the accused. Id. The accused then has 10 days to respond in writing to an informal complaint. Id. The Code requires the Dean to initiate steps “promptly” to resolve the informal complaint. Code,Section 5(g). It also requires that the Dean “shall notify both the Complainant and the accused Faculty Member” that in the event that informal resolution fails and a Formal Hearing Committee thereafter finds an infraction of the Code, that she “must” make a recommendation as to disciplinary measures. Code, Section 5(g). The third option is to file a “formal complaint,” such as is before this Committee. Code, Section 6. It shares many of the procedural components of the informal complaint. Code, Section 6(a)-(c). The principal difference between an informal and formal complaint is that the formal complaint is directed to a Formal Committee that presides over a hearing, deliberates and issues a corresponding report. Code, Section 6(d)-(e). Formal Committee Report, In Re Connell 47
The Code requires that claims be fresh: “To afford the University the opportunity to address alleged violations of this Code, the Complainant should present the allegations to the Grievance Officer as promptly as possible after the alleged discrimination and/or harassment occurs.” Code, Section 5(c). The Code recognizes the practical drawbacks of delay: “Recognizing that the parties may suffer prejudice with the passage of time, including, but not limited to, student or other witness availability, evidence retention, recollections of witnesses and/or parties, … Complaints under Section 5 [informal] or Section 6 [formal] of this Code must be filed no later than 180 days after the alleged violation occurs.” Code, Section 5(c) (bracket text added). The Code permits a complainant to file a formal complaint without first filing an informal complaint. Code, Section 5(i). If an informal complaint has been filed, however, "the formal Complaint must be filed within 45 days of the conclusion or termination of the informal procedures." Code, Section 5(c). The Code also provides that “the University reserves the right in its sole discretion, but is under no obligation to do so, to extend the time periods specified herein.” Code, Section 5(c). There is some question about the course of events leading up to filing the formal complaint, and how that question affects applicable time limitations and waiver. On October 29, 2010, the complainants emailed Assistant Dean Williams a three-page letter addressed to Dean Ammons. Tr. 6/9/11. (In this letter, they raise many of the same concerns eventually contained in the Formal Complaint.) Assistant Dean Williams testifies that she placed this letter in an envelope and delivered it to Paula Garrison, Administrative Assistant to Dean Linda Ammons. Tr. 6/9/11. Dean Ammons had the letter in hand when she met with the complainants on November 19, 2010. Tr. 6/9/11. At Formal Committee Report, In Re Connell 48
that meeting, Vice Dean Kelly handed the complainants a binder containing the Code, and discussed its contents with the complainants. Tr. 6/9/11. Vice Dean Kelly stamped and initialed the letter that Assistant Dean Williams delivered to the Dean’s office on October 29, 2010 as “received” at 10:30 a.m. on November 19, 2010. November 19, 2010 (and October 29, 2010) was more than 180 days following the last alleged violation. This occurred, according to the complainants, “in or close to the week of March 7, 2010,” FC2. The Committee questions whether the University has ever granted a waiver to the time limitations in the Code. Vice Dean Kelly testified that within a few days after November 19, 2010, he discussed the 180 day requirement with Dean Ammons. Tr. 6/9/11. Vice Dean Kelly testified that based on his recommendation that Dean Ammons waived the requirement there and then. Tr. 6/9/11. Vice Dean Kelly testified that as far as he knows, the Dean’s waiver was neither communicated to the parties or anyone else, nor reduced to writing. Tr. 6/9/11. The Committee has some lingering concerns about the time limitation questions. This is because Vice Dean Kelly testified that he believed that the complainants’ November 19, 2010 letter to Dean Ammons was not an “Informal Complaint” pursuant to Sections (b)-(i) of the Code, but rather “just a letter” pursuant to Section 5(a). Tr. 6/9/11. It is unclear to the Committee whether under the Code the limitations period is even relevant to 5(a) allegations. If not relevant to 5(a), then the Vice Dean’s suggestion to the Dean that she waive the time limitations, and her subsequently agreeing to do so, would have been unnecessary. Formal Committee Report, In Re Connell 49
Moreover, unless the Dean’s waiver were prospective and open-ended, a new waiver would have been necessary when the Formal Complaint was filed on March 10, 2011. The Committee recognizes that the acceptance of the Formal Complaint and the appointment of a Formal Hearing Committee could be deemed an implicit waiver by the University of time limitations, as is urged by Vice Dean Kelly. Kelly to Committee. Such an implicit waiver is not expressly provided for under the Code. In any event, because the Committee has not found racial harassment or sexual discrimination, the statute of limitations issue is moot. Claims of retaliation in violation of Section 8 were filed in a timely manner. B. Events Preceding Filing if the Formal Complaint. Complainant Ms. Tandoh first brought this matter to the attention of the Law School Administration on October 22, 2010 when she went in person to the Law School’s Office of Student Affairs and verbally expressed her concerns about Professor Connell to Assistant Dean Serena Williams. After Dean Williams conferred with Associate Dean Susan Goldberg, Dean Williams advised Tandoh to put her concerns in a letter that would be forwarded to law school Dean Linda Ammons. Shortly thereafter, Complainants Perez and Tandoh emailed two letters to Dean Williams. The two letters were the same in content, however, the first (Hearing Committee exhibit 3), was addressed to Dean Susan Goldberg and the second (Hearing Committee exhibit 4), to Dean Linda Ammons. According to testimony at the Formal Hearing, after receiving the first letter, Dean Williams advised Tandoh that the letter should be addressed to Dean Ammons instead of to Dean Goldberg. As a result, Tandoh emailed the second letter. Despite the fact that these letters were submitted in the fall of Formal Committee Report, In Re Connell 50
2010 both letters are dated, May 21, 2010. At the Formal Hearing, both Complainants testified that they first started drafting a letter about Professor Connell in May of 2010. According to the Complainants, when they eventually submitted their letter to the law school administration in Fall 2010, they neglected to update the date initially inserted in an earlier draft. Dean Williams brought the second letter (addressed to Dean Ammons), to the Dean’s Office and personally gave it to Paula Garrison, Assistant to the Dean, on October 29, 2010. The Complainants subsequently received notice that Dean Ammons wanted to talk to them and a meeting was arranged for November 19, 2010. On November 19, 2010, the Complainants met with Dean Ammons in her office and discussed their concerns about Professor Connell. They brought with them a copy of the letter addressed to Dean Ammons, however, they testified that it appeared she already had a copy in her office. During the course of the meeting, Dean Ammons asked Vice Dean J. Patrick Kelly to come into her office to join the meeting. Vice Dean Kelly did join the meeting at the end of which he gave the Complainants a binder containing a copy of the law school’s Discrimination and Harassment Code. The Formal Hearing Committee questions whether the Dean’s Office treated the letter from the Complainants to Dean Ammons as an Informal Complaint pursuant to Section 5(e-i) of the Code or, as an even more informal complaint pursuant to Section 5(a). Some of the actions taken by the Law School Administration in the days following the November 18 meeting suggest that it viewed the Complainant’s letter as an Informal, Section (5)(e), Complaint. On the other hand, at the Formal Hearing, Vice Dean Kelly testified that he believed it to be a Section 5(a) complaint or letter of allegations. The Formal Committee Report, In Re Connell 51
Formal Committee makes no findings on this question. A Formal Complaint was eventually filed on March 10, 2011 and our Committee was appointed to convene a Formal Hearing under Section 6. Because proceedings under Section 6 may be conducted without regard to whether there were any informal processes under Section 5, our Committee finds it unnecessary to resolve questions concerning the nature of the earlier written communications between the Complainants and the Administration. Conclusion For the reasons explained herein, the Committee determines: (1) There is not clear and convincing evidence that Professor Connell has violated the Code pertaining to racial harassment or sexual discrimination. (2) There is clear and convincing evidence that Professor Connell has violated the Code pertaining to retaliation. So issued, this 20th Day of July, 2011
Formal Committee Report, In Re Connell 52
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