OIE's Investigative Report
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UNIVERSITY OF CENTRAL FLORIDA OFFICE OF INSTITUTIONAL EQUITY IN THE MATTER OF: OIE CASE NO. 2019-01225 INVESTIGATIVE REPORT January 13, 2021 SUBMITTED BY: Nancy Fitzpatrick Myers, J.D. Director, Office of Institutional Equity 1 I. INTRODUCTION From June 4, 2020 through August 2020, the Office of Institutional Equity (OIE) received reports from multiple sources (including phone calls, emails, IntegrityLine reports,1 Just Knights Response Team (JKRT) reports,2 and Office of Student Conduct reports) wherein individuals alleged that the Respondent, an Associate Professor in the Department of Psychology, had subjected students to discriminatory harassment in the classroom based on race, ethnicity, national origin, sex, sexual orientation, gender identity, disability, and religion; subjected students to sexual harassment; subjected students to quid pro quo harassment based on religion; engaged in unprofessional conduct; and, failed to appropriately report and respond to a student’s disclosure of a sexual assault to the University. Some reports indicated support for the Respondent and denied misconduct in the classroom, while others shared their reactions to the Respondent’s social media activity and did not identify specific classroom or workplace misconduct. Specifically, OIE initially reviewed approximately 400 hundred emails, over 100 IntegrityLine reports, 10 Just Knights Response Team reports, and two Office of Student Conduct reports related to the Respondent. Based upon the information provided, OIE initiated an inquiry and contacted multiple witnesses in this matter. OIE is a neutral investigatory office responsible for investigating claims of discrimination and harassment based on protected classifications, as well as retaliation. When investigations reveal the presence of discriminatory, harassing or retaliatory behavior, OIE is responsible for making recommendations to mitigate the effects of the discriminatory conduct. Accordingly, OIE conducted an investigation into this matter, and this investigative report summarizes the investigation, factual background, and findings of OIE arising from this investigation. As set forth in detail below, on December 19, 2019 and June 4, 2020, the university received multiple reports alleging that the Respondent had made discriminatory statements on his personal Twitter account, which individuals believed constituted cause to terminate the Respondent’s employment. OIE reviewed the Twitter account and posts of concern (both in December 2019 and again during this investigation) and analyzed whether those statements constituted protected free speech. In this regard, it is important to note that the First Amendment protects a public employee’s right to speak as a citizen addressing matters of public concern as “a citizen who works for the government is nonetheless a citizen.” The courts have noted that it is their “responsibility” to “ensure that citizens are not deprived of fundamental rights by virtue of working for the government.” 1 UCF’s IntegrityLine is a secure reporting system administered by an independent third party, NAVEX Global, that is available 24 hours a day for 365 days a year. NAVEX Global uses their case management system, EthicsPoint, to provide individuals (who may be reluctant to report suspected misconduct through university administrative or central offices) a way to report with complete anonymity. IntegrityLine reports are processed by EthicsPoint and sent to the University Compliance, Ethics, and Risk Office (UCER) to address appropriately. Hereinafter, the IntegrityLine will be referred to as “IL.” 2 UCF’s Just Knights Response Team (JKRT), which is made up of UCF faculty, staff, and students, provides assistance in the event that an individual has experienced or witnessed a hate or bias related incident at UCF. In this role, the JKRT will receive, monitor, refer, and, as necessary, coordinate university resources to these incidents that impact the university community. 2 Although witnesses alleged that the Respondent’s Twitter posts were integrated into the course curriculum and, accordingly, did not merit First Amendment protection, OIE found that there was insufficient evidence in the current record to support this allegation. OIE also analyzed whether the Twitter posts, however controversial or repugnant, addressed a matter of public concern as described in First Amendment jurisprudence. OIE found that the Respondent’s Twitter posts involved matters of public concern and, accordingly, were protected by the First Amendment and could not be the basis for a finding of misconduct or disciplinary action. Turning to the allegations regarding classroom misconduct, it is important to note that in matters involving in-class comments by professors, any analysis of statements that are alleged to constitute discriminatory harassment must consider whether the speech was protected under the doctrine of academic freedom. “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” It consists of “the right of an individual faculty member to teach ... without interference from ... the university administration, or his fellow faculty members.” That said, it is important to take into “account the unique context in which a college professor speaks such that his students are a ‘captive audience’ who may find themselves intimidated by the person who has the ability to pass upon them a poor grade.” The “principle of academic freedom under the First Amendment serves to protect the utterances in question only if they are germane to course content.” After reviewing the 94 undisputed facts and analyzing which of the 84 disputed facts as captured below were substantiated by the evidence, OIE conducted an in-depth analysis of whether the undisputed and substantiated conduct was protected by academic freedom utilizing the course objectives as described by the Respondent during his OIE interview and each course’s syllabus (see Section VIII(B) below). OIE determined that 50 of the Respondent’s behaviors were protected by academic freedom, and thus were not subject to the analysis of whether the Respondent had engaged in misconduct. For instance, OIE determined that the following were protected by academic freedom: Respondent’s discussion that gender is not a total social construct, Respondent’s discussion related to a tribe’s practices related to sexual conduct, Respondent’s presentation of statistics related Muslims’ opinions and statistics related to education and income based on race, Respondent’s use of particular videos (By the Numbers, Consent, Frederick Wilson II), Respondent’s discussion related to the lack of a necessity for affirmative action and the ineffectiveness of diversity initiatives, and Respondent’s presentation in his Cross Cultural Psychology course that the U.S. no longer has systemic racism. Turning to the remaining behavior that OIE found was not protected by academic freedom, OIE found that there was sufficient evidence to support finding that the Respondent created a hostile learning environment for students in violation of the University’s Non- Discrimination Regulation UCF 3.001, Prohibition of Discrimination, Harassment and Related Interpersonal Violence Policy UCF 2-004.1 and Code of Conduct. This conduct included, but was not limited, to the following: The Respondent told students in his General Psychology courses and Cross Cultural Psychology courses that God did not exist and was not real, God was a figment of their imagination, religion was all make-believe, believers were delusional, childish, irrational, unintelligent and ignorant, and believing in religion was like believing in flying elephants, fairy tales, and Santa Clause. The Respondent also told students that raising children with a religious upbringing was a form of child abuse and issued an exam question that asked: 3 According to any reasonable and rational person, telling children that someone is watching them 24/7 and knows every “move they make” and every thought they have, represents essentially: A. a good moral upbringing, B. child abuse, C. parental love, or D. parental protection. Students needed to select option “B. child abuse” to receive credit for answering this question correctly. The Respondent told students that Islam was the fastest growing religion in the world, which just baffled him as to why anyone would want to be a “slave to such toxic mythology.” He also stated that with regard to Islam, the “crackpots who run the cult called Islam will kill you”, and it would be hard to convince him that Islam is a religion of peace. OIE also found that when discussing Frederick Jones, a Black inventor of the portable refrigerator, the Respondent said, “First off, he’s not that Black, he’s more White than Black.” He also told students that Black men have the biggest penises, followed by Whites and Hispanics, followed by Asians. In addition, on at least one occasion, the Respondent made reference to the difference in penis sizes and then high fived a Black male student. He also told students that minorities should be thanking Whites for creating a modern society. The Respondent said to students, “I wish we would eliminate corporal punishment. I wish those of you who are concerned with racism were just concerned with child abuse but unfortunately, you’re not because you don’t get anything out of it. Showing yourself as antiracist, you can look in the mirror and get a little boner.” He also said that a woman was kind of like a Ford pickup truck, built to take a pounding, as well as that most people referred to women who slept with a lot of men as whores and sluts, but he just called them his best friends. The Respondent further told students that “all men are a little bit gay because if someone was sucking their dicks and they were going to cum and they then realized that it was a guy doing the sucking, they would still finish.” OIE further found that the Respondent violated UCF Regulation 3.001 Non- Discrimination; Affirmative Action Programs in February 2014 when he failed to report and appropriately respond to a student’s disclosure of having been sexually assaulted by one of his teaching assistants.