EFTA00794000.pdf

I KAISERDILLONruz 1401 K St NW Sure 600 --• no" 10005 WIN .KAISERDILLOOLISM [email protected] [email protected] May 23, 2018 VIA ELECTRONIC MAIL Ms. Cynthia Jewett Senior Associate General Counsel Office of General Counsel Arizona State University PO Box 877405 Tempe, AZ 85287-7405 [email protected] RE: Legal Issues Regarding the Pending Investigation of Professor Lawrence Krauss Dear Ms. Jewett, We are writing to follow up on the interviews Erin Ellison conducted with Professor Lawrence Krauss on April 24 and May 4, 2018.1 We understand that Arizona State University ("ASU" or "University") is currently drafting its investigative report and that the Office of General Counsel plans to review that draft before it is finalized and shared with Professor Krauss. Based on the allegations that were described to Professor Krauss during the interviews, and the explanations and evidence that Professor Krauss provided, we believe there is no basis to impose any employment sanctions or discipline upon him. First, the evidence demonstrates that Professor Krauss has not violated ACD 401: Prohibition Against Discrimination, Harassment, and Retaliation and that he did not create a hostile work environment for female employees at the Origins Project in violation of Title VII. Second, pursuant to ABOR Policy 6-201 governing ' We have not yet received transcripts of these interviews and ask that Ms. Ellison send them to us or to Professor Krauss directly as soon as possible. EFTA00794000 Conditions of Faculty Service, the University cannot establish just case to subject Professor Krauss to either suspension without pay or termination. 1. Professor Krauss Did Not Create a Hostile Work Environment Title VII is only violated if sexual harassment is so severe or pervasive as to create a hostile work environment.2 As you know, an employer such as ASU is vicariously liable under Title VII for conduct of a supervisor giving rise to a hostile environment when "the employee proves (1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999). The conduct must be so extreme as to amount to a change in the terms and conditions of employment. See Montero v. ACC() Corp., 192 F.3d 856, 860 (9th Cir. 1999). "To be actionable under Title VII, 'a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 777, 787 (1998)). Courts determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher, 524 U.S. at 787-88. Simple teasing, offhand comments, and isolated incidents (unless extremely serious), do not amount to a hostile or abusive work environment. See Faragher, 524 U.S. at 788. Title VII is not "a general civility code." Id. For all of the reasons below, the comments and conduct alleged by the complainants—the vast majority of which Professor Krauss denies ever happened—would not constitute a hostile work environment, even if true. a. Professor Krauss's alleged comments and conduct were not severe or pervasive. Professor Krauss's alleged comments are neither sufficiently severe nor pervasive to constitute a hostile work environment. Many of the allegations against Professor Krauss were categorized in the Notice Letter dated April 13, 2018 as "unwelcome comments of a sexual nature" or "gender-based comments"-for example, commenting about the physical attractiveness of women and making negative remarks to staff about pregnancy and maternity leaves. In the interviews, Ms. Ellison revealed that these comments were primarily reported by two female former employees of the Origins Project, Ms. Michelle Iwen and Ms. Sydney Lines. Professor Krauss clearly and cogently explained that many of these alleged sexual or gender-based comments were nothing more than benign jokes and that Ms. Iwen and Ms. Lines themselves made similar jokes with 2 ACD 401 defines "sexual harassment" consistent with Title VII: "Sexual harassment is also unwelcome behavior or conduct of a sexual nature (including unwelcome sexual advances or activity), which is sufficiently severe or pervasive as to create an intimidating, hostile, or offensive environment for academic pursuits, employment, or participation in university- sponsored programs or activities." 2 EFTA00794001 respect to male potential speakers or celebrities. Professor Krauss also patiently explained that he was incredibly supportive of his administrative assistant, Jessica, who has taken not one but two maternity leaves, and, if anything, he was critical of the University for not providing enough leave and support to mothers. In Pieszak v. Glendale Adventist Medical Center, the court concluded that another work environment far more offensive than what has been alleged aiLinst Professor Krauss did not constitute a hostile work environment. 112 F.Supp.2d 970 (M. Cal. 2000). In Pieszak, the female plaintiff, a physician, had identified about 15-20 different incidents over an I8-month period in which a male resident (along with others) had made offensive sex-based or gender- based comments that were "clearly inappropriate and in bad taste." id. at 992-93. These included telling "crude, graphic jokes about patients and their gynecologic anatomy," "mak[ing] fun of [his] patients' gynecological problems," and discussing with plaintiff his desire to have sex with his wife. Id. at 976. This resident also had earned "a reputation as someone who harassed, yelled at, belittled, and demeaned female staff members." Id. However, the court concluded that this conduct was "simply not of [the] order of magnitude" to alter the conditions of plaintiff's employment, and thus was not sufficiently severe or pervasive to constitute harassment prohibited by Title VII. Id. at 993 (quoting Kortan v. Califonda Youth Authority, 217 F.3d 1104, 1111 (9th Cir. 2000)). Similarly, in Ayala v. Frito Lay, Inc., the court granted the defendant employer's motion to dismiss the plaintiff s claim for hostile work environment because the conduct alle ed was not so abusive as to alter the conditions of her employment.; 263 F. Supp. 3d 891, 911 . Cal. 2017). Plaintiff alleged generally that she had experienced sexual harassment and claimed that co-workers and managers had made offensive sexual comments, including "I thought it was role- play gone bad" and "let me go get you your own rubber," as well as a man who referred to "wearing steel boots to put his foot up a woman's behind." id. at 910. But the court noted that plaintiff did not allege that any of the offensive statements were made repeatedly, that they were directed towards her, or that they interfered with her work performance. id. The allegations leveled at Professor Krauss fail for the same reason: none of the Origins Project employees has made a credible claim that Professor Krauss's comments altered the terms or conditions of her employment. Some of the complainants alleged that Professor Krauss is or was having an affair with the executive director at the Origins Project, Ms. Amelia Huggins. This allegation is totally unsubstantiated, and has been vehemently denied by Professor Krauss, Ms. Huggins herself, and several witnesses submitting letters on Professor Krauss's behalf. However, even if true, such conduct would not establish a hostile work environment for other employees under Title VII. See Candelore v. Clark County Sanitation Dept., 975 F.2d 588, 590 (9th Cir. 1992) (finding no prima facie case of discrimination where plaintiff alleged one of her co-workers had an affair 3 Plaintiffs claims were brought under the California Fair Employment Housing Act ("FEHA"). Claims for hostile work environment under FEHA are analyzed under the same standard as those under Title VII and "California courts apply the Title VII framework to claims brought under FEHA." Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007). 3 EFTA00794002 with a supervisor resulting in favorable treatment for co-worker while plaintiff "grew increasingly frustrated in her position"). Moreover, "[t]here is no categorical `harassment exception' to the First Amendment's free speech clause." Rodriguez v. Maricopa County Community College Dist, 605 F.3d 703, 708 (9th Cir. 2010) (internal quotation omitted). In Rodriguez, a professor sent three offensive, racist emails to a distribution list maintained by the community college district where he taught. No disciplinary action was taken against him, and no steps were taken to enforce the existing anti-harassment policy. A class of the district's Hispanic employees then sued the district claiming that the district's failure to properly respond to the emails created a hostile work environment in violation of Title VII and the Equal Protection Clause. Id. at 705. Finding in favor of the district, the court held that "[p]laintiffs may wish that the district had disciplined or dismissed [the professor], but the district wasn't required to do so...When an employer is made aware of unlawful harassment... the proper object of an employer's response is to deter and stop further harassment, not to punish the harasser." Id. at 707. Just like the complainants against Professor Krauss, the plaintiffs in Rodriguez objected to the challenged speech based entirely upon the point of view contained therein, and "it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive." Id. at 708. b. None of Professor Krauss's alleged offensive comments were directed to complainants. Moreover, Professor Krauss's alleged sexual or gender-based comments did not create a hostile work environment because his comments were not about the complainants, nor were the comments intended to offend or intimidate the complainants. In Kortan, the court found that although a supervisor's sexual comments had been undeniably offensive-such as referring to a female supervisor as women a "castrating bitch" and women generally as "bitches" and "histrionics," 217 F.3d at 1106-07—they were not frequent, severe, or abusive enough to interfere unreasonably with plaintiff's employment. In particular, the court stressed that the supervisor's comments were about other people, and that the supervisor had never directed a sexual insult at the plaintiff. Id. at 1110-11. In Cutrona v. Sun Health Corp., the Arizona district court found that a supervisor's unquestionably offensive and pervasive comments (e.g., referring to many women as "bitches;" stating that a nurse should not have sex with a man because "you don't know where his penis has been"; openly discussing orgasms in front of staff, volunteers, and patients; and suggesting that a nurse was dating an African-American man due to the size of his penis) did not constitute a hostile work environment because only one of the alleged comments was directed at the plaintiff personally. 2008 WL 4446710, No. CV 06-2184, at *9-*10 (D. Ariz. Sept. 30, 2008) ("Although Plaintiff's allegations establish that Ms. Vanca's offensive behavior made Sun Health an unpleasant place to work, there is no indication that Plaintiff was singled out for poor treatment because of her gender or race."). Critically, none of the Origins Project employees, including Ms. Iwen and Ms. Lines, have alleged that Professor Krauss directed offensive sexual or gender-based comments at them. This fact, along with the relatively minor severity of Professor Krauss's alleged comments, 4 EFTA00794003 demonstrate that Professor Krauss did not create a hostile work environment amounting to a change in the terms and conditions of employment for either Ms. Iwen or Ms. Lines. See Montero, 192 F.3d at 860. c. Professor Krauss's alleged comments or actions not experienced by the complainants are irrelevant. During the interviews with Professor Krauss, Ms. Ellison and Ms. Malinke brought up a number of allegations concerning comments or conduct occurring away from ASU and not involving any ASU students, faculty, or employees (e.g., an encounter with Ms. Cristina Rad that allegedly occurred at a bar in an unidentified location; a meeting at the home of the director of a Max Planck Institute in Germany; a dinner with Ms. Lydia Allen in Texas). These allegations are irrelevant to the question of whether Professor Krauss's actions created a hostile work environment for his employees at the Origins Project. There is a circuit split as to whether conduct outside of the workplace may be considered when evaluating a hostile work environment claim. See, e.g. Douglas Garmager, Comment, "Discrimination Outside of the Office: Where to Draw the Walls of the Workplace for a `Hostile Work Environment' Claim Under Title VII," 85 Chi.-Kent L. Rev. 1075 (2010); Alisha Patterson, Comment, "None of Your Business: Barring Evidence of Non-Workplace Harassment for Title VII Hostile Environment Claims," 10 U.C. Davis Bus. L.J. 237 (Spring 2010). It does not appear that the Ninth Circuit has addressed this issue. But courts on both sides of the split universally have limited their analyses to alleged harassment experienced by the employee/plaintiff. We are unaware of a single case in which actions taken by the alleged harasser toward third parties has ever been part of the calculus for a hostile work environment analysis. Thus, when determining whether Professor Krauss has violated ACD 401 and/or Title VII, OEI must limit its analysis to the direct experiences of ASU students, faculty, or employees and disregard allegations having no connection to ASU. d. Professor Krauss's opinions on feminism and selection of speakers are protected by the First Amendment. During the interviews, Ms. Ellison also presented allegations that Professor Krauss was hostile to feminism and/or resistant to inviting speakers with feminist perspectives. As an initial matter, this is plainly false, as Professor Krauss explained at length in his interviews. Professor Krauss is not at all hostile to feminism, and any suggestion to the contrary is just more of the same character assassination from two disgruntled former employees who want to find something, anything, to tag him with, regardless of the evidence to the contrary. But even if it could be shown that Professor Krauss, for whatever reason, did not think that an Origins Project event was the proper forum to discuss feminist ideas—indeed, one wonders what a "feminist take" on the origins of the universe would look like—the First Amendment would prohibit ASU from punishing him for making such decisions. Thus, Professor Krauss's expression of his opinions on these issues cannot be considered as contributing to any alleged hostile work environment. In the Ninth Circuit, "speech related to scholarship or teaching" is governed by the test articulated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), 5 EFTA00794004 rather than the more recent test in Garcetti v. Ceballos, 547 U.S. 410 (2006). See Demers v. Austin, 746 F.3d 402, 406, 411 (9th Cir. 2014) ("We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court."). The Pickering test has two parts. First, the employee must show that his or her speech addressed "matters of public concern." Id. at 412 (quoting Pickering, 391 U.S. at 568). "Speech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community." Id. at 415 (internal quotation omitted). Second, the employee's interest "in commenting upon matters of public concern" must outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 412 (quoting Pickering, 391 U.S. at 568). Even a quick glance at the Origins website makes clear that Origins events deal with matters of public concern—the origin of life, climate change, artificial intelligence, and so on. See https://origins.asu.edukvents. Professor Krauss's opinions regarding the appropriate speakers for such subjects thus sail past the first Pickering test. It is equally obvious that ASU has no articulable countervailing interest in a imposing a generalized diversity mandate on such events. These choices, in short, constitute core First Amendment speech, and they cannot lawfully be second-guessed by a school's diversity czars. 2. No Just Cause Exists to Dismiss Professor Krauss or Suspend Him Without Pay It was evident during the interviews that the vast majority of the allegations against Professor Krauss are simply untrue, fabricated by disgruntled former employees or others harboring a grudge against him. Yet, even assuming arguendo that the University could meet its burden to prove these allegations, the conduct still would not establish just case for dismissal or suspension with pay under the University's policies. See Arizona Board of Regents (ABOR) Policy 6-20111(a). "Just cause" is defined in ABOR Policy 6-201.J.1(b): Just cause shall include, but not be limited to, demonstrated incompetence or dishonesty in professional activities related to teaching, research, publication, other creative endeavors, or service to the university community; unsatisfactory performance over a specified period of time and a failure to improve that performance to a satisfactory level after being provided reasonable opportunity to do so by the university, as demonstrated through the board-approved post-tenure review process; substantial neglect of or refusal to carry out properly assigned duties; personal conduct that substantially impairs the individual's fulfillment of properly assigned duties and responsibilities; moral turpitude; misrepresentation in securing an appointment, promotion, or tenure at the university; or proven violation of Board or university rules and regulations (including the code of conduct or any other disciplinary rules), depending on the gravity of the offense, its repetition, or its negative consequences upon others. Since Professor Krauss has not violated ACD-401, as discussed above, the only provisions arguably implicated in the current investigation of Professor Krauss are "personal conduct that 6 EFTA00794005 substantially impairs the individual's fulfillment of properly assigned duties and responsibilities" and "moral turpitude."' Neither has been, nor can be, established. First, there has been no evidence that Professor Krauss's fulfillment of his properly assigned duties and responsibilities have been affected at all by the alleged conduct currently under investigation, let alone "substantially impaired." None of the allegations relate to Professor Krauss's "teaching (including advising), research, or service performance" as described in ABOR Policy 6-201.G, "Duties and Responsibilities." The complainants have not impugned his performance in the classroom, mentoring of students, or the public operations of the Origins Project. Indeed, not a single one of the present allegations was made by a current ASU student. In fact, the only allegation involving any ASU student relates to a vague, unsubstantiated claim that Professor Krauss "hit on" a graduate student in 2010—which was raised for the first time eight years after it allegedly occurred. Give. Me. A. Break. Second, "moral turpitude" is not defined in ABOR Policy 6-201, and thus provides very little notice to faculty regarding what conduct is proscribed, as well as insufficient guidance to university officials seeking to apply the policy. Common conceptions of "moral turpitude" may include such widely divergent transgressions as fraud, conviction of a felony, or violation of then-existing social norms. In Thompson v. Southwest School District, 483 F. Supp. 1170 (M. Mo. 1980), a female teacher had been fired for immorality because she was living with a man to whom she was not married. The court considered whether a state statute governing termination of permanent teachers was unconstitutionally vague. The Missouri statute was very similar to ABOR Policy 6-201.11(b), providing that: An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes: (1) Physical or mental condition unfitting him to instruct or associate with children; (2) Immoral conduct; (3) Incompetency, inefficiency or insubordination in line of duty; (4) Willful or persistent violation of, or failure to obey the school laws of the state or the published regulations of the board of education of the school district employing him; (5) Excessive or unreasonable absence from performance of duties; or (6) Conviction of a felony or a crime involving moral turpitude. Thompson, 483 F.Supp. at 1178 (emphasis added). The court first noted the problem with the immorality provision of the statute as written: "A statute so broad makes those charged with its enforcement the arbiters of morality for the entire community. In doing so, it subjects the livelihood of every teacher in the state to the irrationality and irregularity of such judgments. The statute is vague because it fails to give fair warning of what conduct is prohibited and because it permits erratic and prejudiced exercises of authority." Id. at 1179 (quoting Burton v. Cascade The other examples listed in Section 6-201.J.1(b) do not apply to the facts of Professor Krauss's case. 7 EFTA00794006 School Dist. Union High School No. 5, 353 F. Supp. 254, 255 (D. Or. 1973). The court then proceeded to interpret "immoral conduct" in the context of the statute as a whole, which evinced an intent "to allow dismissal only in instances where immoral conduct adversely affected a teacher's performance," noting that all of the other subsections "relate[] to grounds for dismissal wherein a teacher's competency has been affected." Id. at 1180. This analysis equally applies to the interpretation of "moral turpitude" in ABOR Policy 6-201.J.1(b). Every other clause in the subsection relates to professional duties and service to the university community or university rules and regulations. It would be unconstitutionally vague and incongruous for "moral turpitude" to extend to all personal conduct by faculty, anywhere in the world, however disengaged from their professional roles and responsibilities, that could subjectively be considered immoral depending on the culture of the time and the idiosyncrasies of the particular adjudicators charged with its evaluation. Thus, ASU should only find just cause under the "moral turpitude" provision when the alleged conduct affects the faculty member's fitness to fulfill his responsibilities to students and fellow faculty. Cases discussing discipline of tenured university faculty for moral turpitude or immorality are few and far between, presumably because that is an exceedingly rare basis for employment action against professors. Yet, without exception, every case we found upholding termination of a tenured educator for immorality of a sexual nature involved conduct with students, faculty, and/or staff of the school, consistent with the analysis above.' • In Haegert v. University of Evansville, 977 nal 924 (Ind. 2012), a professor was terminated after the university received multiple complaints from students about a him regarding "derogatory comments about women, explicit commentary, and inappropriate touching," id. at 931, in addition to an incident in which the professor interrupted the female department chair's interview with a female prospective student, greeted the department chair by saying "Hi, Sweetie," and then "walked up to her—standing with his belt buckle at her eye-level, about a foot from her face—and stroked his fingers under her chin and along her neck." Id. at 929. • In Earnhardt v. University of New England, 1996 WL 400455, No. 95-229 (D. Maine, July 3, 1996), a professor was terminated after multiple current and former students filed sexual harassment claims against him and the professor admitted having sexual relationships with those students. • In Kmf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984), several students alleged that a professor had made unwelcome sexual advances toward them and offered good grades contingent on sexual involvement. Id. at 1224. An investigative committee ultimately found that the professor had "used his position and influence as a teacher to exploit students for his private advantage." Id. The Seventh Circuit held that "the reasons for his termination were adequate...and 5 We have excluded very old, outdated cases in which the alleged "immorality" or "moral turpitude" involved only consensual homosexual conduct. 8 EFTA00794007  rationally related to the duty of the University to provide a proper academic environment." Id. at 1229. • In Lehmann v. Bd. of Trustees of Whitman College, 576 P.2d 397 (Wash. 1978), a professor was terminated after an investigatory committee found that he had made unwanted sexual advances toward not only female students, but also female faculty and staff, and wives of faculty and staff members over an extended period of time. Id. at 398-99. The committee also noted substantial teaching deficiencies and improper behavior toward the faculty and administration. Id. • In Bd. of Trustees of Compton Jr. College Dist. of L.A. County v. Stubblefield, 94 Cal. Rptr. 318 (Cal. Ct. App. 1971) the court upheld the dismissal of a junior college teacher based on charges of immoral conduct and evident unfitness for services under the California Education Code. A police officer had discovered the teacher and one of his students in a parked car and partially unclothed. The teacher then threw the car into reverse, accelerated rapidly backward knocking the officer to the ground, and led the officer on a high-speed chase until the student persuaded him to stop. Id. at 320. The court stated: "It would seem that, as a minimum, responsible conduct upon the part of a teacher, even at the college level, excludes meretricious relationships with his students and physical and verbal assaults on duly constituted authorities in the presence of his students." Id. at 321. Thus, even if true, Professor Krauss's actions on personal trips or at conferences unrelated to his appointment at Arizona State University, such as the alleged groping incident at the skeptics' conference in Melbourne, Australia would not constitute "moral turpitude" under ABOR Policy 6-20111(b). *** We understand that, after the BuzzFeed article came out, ASU had little choice but to investigate some of the allegations that have been made against Professor Krauss. We are concerned, however, that the Office of Equity and Inclusion may not understand what the Constitution and Title VII do, and do not, allow public universities to punish. Just because OEI might find particular comments distasteful, or might not think certain jokes funny, doesn't mean that it has the power to punish Professor Krauss for making them. The First Amendment no more stops at the schoolhouse door for professors than it does for students. 9 EFTA00794008  Thank you very much for your consideration of our position, and please do not hesitate to contact me if you would like to discuss any of this. We look forward to reviewing the investigative report. Sincerely, Justin Dillon Courtney R. Forrest 10 EFTA00794009