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Ohio University Trustees Raise ‘Serious Questions’ About Report In Sexual Harassment Case
By: David Forster
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ATHENS, Ohio (WOUB) — Ohio University’s board of trustees was faced with conflicting recommendations Monday night as it weighed the fate of a professor accused of sexual harassment.
Two faculty ethics committees, the university’s provost and the university’s president have recommended journalism professor Yusuf Kalyango’s tenure be revoked and he be dismissed.
But a special committee of the university’s Faculty Senate recommended the opposite and condemned the investigation into Kalyango as flawed.
The board plans to take up the committee’s new report, and whatever recommendation it makes, at its April 9 meeting.
Kalyango is facing discipline because of allegations he sexually harassed two female students. The two filed complaints with the university’s Office of Equity and Civil Rights Compliance (ECRC), which investigated the claims and concluded Kalyango had sexually harassed the students.
One of the questions raised by the board involves the standard of evidence used by the Faculty Senate special committee.
In December, the committee held two days of hearings to review the decision to strip Kalyango of his tenure and dismiss him. The committee called witnesses, reviewed documents and then concluded it was not convinced by clear and convincing evidence Kalyango had sexually harassed the two students.
The committee’s report was leaked to the media, triggering a social media backlash and leading the Faculty Senate to pass a resolution calling for the report to be withdrawn from consideration by the board of trustees.
The board chose to consider the committee’s report anyway, but some of the concerns raised by the board Monday were similar to those in the Faculty Senate’s resolution.
The resolution said the special committee applied the wrong standard of evidence in its review of the ECRC investigations. It also said the committee lacked the authority to conduct its own fact finding in sexual harassment cases in the first place.
The process for investigating claims of sexual misconduct is spelled out in a university policy that says the ECRC is the designated unit for conducting formal investigations. It says the investigations should be done by someone with training and/or experience in conducting investigations.
The policy says the standard for evaluating evidence in sexual misconduct cases is preponderance of the evidence. This means more likely than not, and it is a much easier standard to meet than the clear and convincing evidence standard used by the special committee.
It is not clear whether the special committee, when reviewing the results of an investigation by ECRC, can do its own fact finding and draw its own conclusions as to whether the evidence supports claims of sexual harassment.
The committee operates under the loss of tenure procedure detailed in the university’s Faculty Handbook. This section does not specifically address sexual misconduct cases and does not specify an evidentiary standard to be used in tenure revocation generally.
The committee’s role is to review the grounds for a faculty member’s dismissal, which are detailed in a letter by the university’s president. The faculty member can also request a formal hearing by the committee, which happened in this case.
The Faculty Handbook says that if a hearing is requested, the committee “shall consider the case on the basis of the statement of persons possessing relevant information and other data concerning the matters set forth in the President’s letter.”
WOUB asked the university for clarification on whether the wording of that statement gives the committee the authority to investigate and draw its own conclusions on sexual harassment claims. A spokesperson said the university could not comment about the language in the handbook because of a lawsuit Kalyango filed against the university last year.
In the lawsuit, Kalyango argues the university did not follow its own policies throughout the investigation into the sexual harassment claims and the tenure revocation procedure. The Faculty Handbook details the process for investigating and disciplining faculty and could play a central role in the legal case, which may explain the university’s reluctance to offer any public interpretations.
Another concern raised by the board of trustees was the special committee did not permit the university’s representative to cross-examine Kalyango during its two-day hearing in December. The committee did permit Kalyango’s attorney to cross-examine the two women who filed the complaints against him.
Professor Robin Muhammad, who as chair of the Faculty Senate also serves as chair of the special committee, told WOUB the committee followed the hearing procedures “as they are currently written” and said that the procedures, including the standard for evaluating evidence, were shared with the state attorney general’s office before the hearing.
The board of trustees also criticized the special committee’s report for failing to make explicit the grounds upon which its findings were made. In its report, the committee offered two main reasons for its recommendation that Kalyango should not lose his tenure and instead should be reinstated as a full professor.
The first was that it was not convinced the two women had been sexually harassed. The second was that it did not believe Kalyango had received proper due process.
Due process is a constitutional right, and at the most basic level it means that a person cannot be stripped of something that belongs to them without a fair procedure.
Ohio University’s sexual misconduct policy details the procedure for an investigation, but it does not address discipline. That is left to the person or entity with supervisory or oversight authority over the accused.
In the case of a faculty member, discipline sets in motion another procedure, which is detailed in the Faculty Handbook. And if the discipline is loss of tenure, that triggers yet another procedure in the handbook.
The special committee in its report raised three specific questions with regard to its overall concerns that Kalyango had not been given proper due process. One question had to do with whether an attempt had been made at arbitration.
The only reference that suggests arbitration should be part of the process in these cases is in the loss of tenure section in the Faculty Handbook. It says that if a dean recommends to the university’s provost that a faculty member lose tenure, the provost should then “undertake to investigate and arbitrate the difficulty.”
The handbook does not specify what is meant by arbitrate in this context. A university spokesperson said that Provost Elizabeth Sayrs wrote in a letter to President Duane Nellis that she meet with Kalyango and attempted to arbitrate the matter but did not provide any details about what this consisted of.
The special committee also asked “at what points during the investigation did the faculty member have the opportunity to respond to allegations, to state his case fully or his argument against accusations completely, or to have legal counsel or advocates present?”
The ECRC said in its reports that its investigations included interviews with Kalyango and a review of documents submitted by him. The reports also say that Kalyango was provided a summary of the evidence packet for review and was invited to respond in writing. His response was reviewed by the investigator before the final report was filed.
The university’s investigation procedures allow any party interviewed by the ECRC to bring an attorney or support person with them.
The third question raised by the special committee was whether other disciplinary options were considered before the decision to strip Kalyango of his tenure. The answer is not clear from the records reviewed by WOUB for this story. It’s also not clear to what extent other options must be considered.
It appears the recommendation to revoke Kalyango’s tenure came from two sources.
The Faculty Handbook includes a section addressing sexual misconduct complaints against faculty. This section details the steps to be taken if an ECRC investigation finds there was sexual misconduct. In that case, a University Professional Ethics Committee is formed to review the ECRC report and decide what if any punishment is appropriate. This recommendation then goes to the provost.
In both of the sexual harassment cases against Kalyango, the ethics committee, which is made up of faculty, recommended loss of tenure. And in both cases, the provost agreed with this recommendation.
The recommendation went to the journalism school, and this triggered the start of the loss of tenure procedure. That process began with the chair of the journalism school, who made a recommendation to the dean of the Scripps College of Communication, who then recommended to the provost that Kalyango lose his tenure.
The process seems somewhat circular: The provost recommends to the school that Kalyango lose tenure and then the school recommends back to the provost that Kalyango lose tenure. And then the handbook requires that the provost “investigate and arbitrate” even though in this case the provost has already recommended loss of tenure based on the recommendations of the ethics committees and the findings of the ECRC investigations.
WOUB has filed a public records request for copies of the reports by the ethics committees to see if they shed any light on the extent to which they considered punishment for Kalyango other than loss of tenure.