The Sad Case of David Porter and His Fight for Academic Freedom

Guest Post: A Summary of the legal case behind Porter vs Sergent & Berea College.

Dave Porter was a Psychology Professor of Psychology at a small Christian College in Kentucky, Berea College. He had moved there after 30 years in the Air Force, attracted by the history of the college and the fact that he had been born there while his father was a student. It was founded in 1855 by an abolitionist; it was the first school south of the Mason Dixon Line to educate black and white, men and women together. It offers every student a full tuition scholarship and requires 10 or more hours of weekly campus work.

He joined the University as Academic Vice-President and Provost, and stepped down after 4 years to return to the classroom as a tenured professor. Then, he made the mistake of trying to explore, with his students, issues of hostile work environments that were relevant to actual cases that had arisen at the College, and which he had previously expressed concerns about in writing to the College.

The College that he had once help lead viciously turned on him. He was censured and censored, and then ultimately dismissed from his tenured position.

He filed a legal case against the College but his petition was rejected by the summary Judgement of a federal judge. He is currently appealing that decision. During this tragic period he has undergone numerous personal, and well as professional difficulties, without support from his former institution and many of his past colleagues.

Here is his story, as described in the summary that he prepared for his counsels for his appeal. He has agreed to let me publish it here on Critical Mass. It is a sobering read and raises serious concerns about whether tenure provides any longer protections of free speech, and open inquiry by faculty members at US institutions. It also demonstrates how aggressively university administrators can act to marginalize or remove a faculty member who runs afoul of a social media controversy affecting the university. —LMK

The following is my account of the events which led to termination of tenure and my dismissal for cause from Berea College in the fall of 2018.  It contrasts sharply with the narrative developed by Title IX grievants, proclaimed by them on social media, accepted by the College administration, and implicit in a federal judge’s decision to grant the College’s motion for summary Judgment in September 2022.

In the spring of 2017, several female members of the Berea College Psychology Department lodged a formal Title IX grievance against our department chair, Dr Wayne Messer.  The grievance claimed that over the previous five years, he had discriminated in hiring and promotion, retaliated against female faculty members, and created a hostile work environment.  The case was investigated, reviewed by a Campus Conduct Hearing Board, and appealed to a Faculty Appeals Committee in accord with the Berea College Faculty Manual.  In the end, Dr Messer was acquitted of the first three charges and over half of the alleged episodes claimed to have created a hostile work environment.  Nonetheless, three incidents were determined to be sufficiently severe and pervasive to have created a hostile work environment.  Subsequently, the college president and dean of the faculty removed Dr Messer as Department Chair and forced him to move his office to the otherwise unoccupied basement of our building.

Dr Porter served as the faculty advisor and was privy to all documents and proceedings related to this grievance.  Both by education and experience, Dr Porter was familiar with hostile work environments and academic freedom.  Dr Porter received a Masters’ degree in Industrial Relations which emphasized the 1964 Civil Rights Act from UCLA in 1972.  He was trained as an Air Force Equal Opportunity and Treatment Officer and Race Relations Instructor.  He was affirmed by the US Senate to serve as the Permanent Professor and Head of the USAF Academy’s Department of Behavioral Science and Leadership in 1996.  Upon his retirement in 2001, he was selected by Berea College to serve as its Academic Vice President and Provost.  He taught the Berea College course in Industrial Organizational Psychology (which addresses workplace discrimination) many times.  In addition, his role as a consultant evaluator for three regional educational accreditation organizations (NCA, WASC, & SACS) and academic assessment expert for the American Association of Higher Education and Western Governors University provided relevant administrative experience and knowledge.

Dr Porter’s observation of the College’s Title IX program revealed violations of due process, biased administration, and a lack of leadership.  He expressed these concerns in an essay (Unfair) sent to the college president, dean of the faculty, and college counsel.  He accepted that Dr Messer’s case was concluded but opined that the policy and procedural deficiencies in the College’s Title IX Program and protection of academic freedom needed review and revision.  He received no response from any of the senior administrators to whom he’d sent the essay.  The following semester, he again taught industrial/organizational psychology and engaged his students in conversations about academic freedom and its contributions to higher learning.  The students’ response was very positive.  He acquainted them with the inherent tension between Title IX prohibitions against hostile workplace environments and academic freedom in teaching and research.  He suggested that the psychological tools and analytic techniques related to survey research and assessment commonly employed by I/O psychologists would provide an opportunity for students to gather relevant information concerning perceptions and judgments of members of their campus community.  The students embraced this opportunity and voiced unanimous support for conducting a survey study.

Over several weeks, he and his class developed a survey containing about 20 realistic (i.e., ecologically-valid) scenarios seeking to ascertain respondents’ perceptions of hostile environments and judgments about academic freedom.  In addition to the classroom development activities, Dr Porter sent drafts of the survey to a dozen senior faculty members with relevant experience and received written feedback from six of them.  Although several reviewers expressed concern that the survey would be controversial, none voiced concerns about confidentiality, privacy, harm to participants, or any ethical issues.  Dr Porter took their feedback seriously, amended the survey, and provided extensive responses to every expressed concern before proceeding.  Students in the course completed a draft survey and the results along with their subjective feedback helped refine the survey to focus narrowly on hostile environment perceptions and academic freedom.  Standard survey techniques such as a written disclaimer in the survey instructions; inclusion of diverse incidents from other times and places; and changing the race, gender, and relevant details of some of the scenarios minimized the exposure of individuals involved in the incidents.  A final draft of the survey was sent to the dean of faculty on the Friday prior to it being posted late Monday morning.

The survey was of immediate interest and within the first day over 120 members of the campus community had completed it.  While some respondents applauded the relevance, importance, authenticity, and educational value of the survey, others strongly objected to it.  Postings on social media by one of the grievants in Dr Messer’s case and others evoked campus turmoil.  After requesting a private meeting (Berry e-mail, Feb 19, 9:04 PM), he would not fulfill, the dean publicly requested the survey be withdrawn and Dr Porter apologize to the community for the harm he had caused (Dr. Porter’s draft apology (Mea Culpa) was provided to the dean and president within a day, but the president rejected it because he believed it blamed others for his alleged transgressions.  Dr Porter was subsequently charged with “personal conduct which demonstrably hindered fulfillment of his professional responsibilities.”  In addition, Dr Porter was suspended from the College and his courses reassigned to other faculty members; he was prohibited from using or sharing data from the survey and communicating with students; he was banished from the campus and only allowed to visit his office with the dean’s permission and informed that dismissal for cause proceedings against him would be initiated.

The College’s Faculty Manual asserts “The College is bound only by its policies and procedure, not by the policy statements of any external organization” (BC FM, pg. 121, para 1).  This statement focuses on the American Association of University Professors (AAUP’s) Guideline to its 1940 Statement on Academic Freedom and Tenurefrom which large portions of the Berea College Faculty Manual were copied.

Nonetheless, the college faculty manual promises faculty members the “Constitutional rights which belong equally to all citizens” as well as full academic freedom in teaching and research.  The BC FM also contains a section entitled Community Aspirations (pp. 72-73).  It includes the following:

Berea College values freedom of expression and collegiality.  Education and edification both proceed through rich engagement and honest sharing of knowledge, perspectives, and insights.  Hindrances to dialogue and free expression can very much impede learning.  The concept and application of academic freedom at Berea College protect these values and are articulated in the Faculty Manual.  While these rights and responsibilities specifically apply to teaching faculty at the College, they should also be taken as a guide for other members of the community…  Dialog, engagement, and learning, however, can also be limited when prejudice, discrimination, or insensitivity result in the discouragement and silencing of members of the community.  The Berea College community functions best when all members are doing everything possible to learn from one another, when all make charitable assumptions regarding the intent of others, and when all value rich dialogue and commit to responsibility and sensitivity in their engagement with others.”

This section concludes: “This statement of community aspirations describes the values that students, faculty, staff and alumni at Berea College are encouraged to endorse and uphold.  This statement does not mandate these values and is not intended to restrict any person’s conscience or academic or personal freedoms” (BC FM p.73 para3).   

Arguably, the survey and Dr Porter’s actions before, during, and after its publication were consistent with these aspirations.  In contrast, the College’s words and behavior have been inconsistent with this written policy.  Here are several examples:

1.)   The dean’s immediate response to the turmoil following the survey and Dr Williams social media posting was to request a meeting with Dr. Porter (Berry e-mail, Feb 19, 9:04 PM).  Dr Porter agreed to meet any time he was not in class.  However, this meeting never occurred.  Dean Berry posted a public announcement implying Dr Porter’s responsibility for the turmoil and requesting the survey be removed and Dr Porter apologize to the community (Berry e-mail, Feb 20, 2018, 11:10 AM).

2.)   When the Faculty Status Council (FSC) met to consider the case for Dr Porter’s dismissal, the Dean rejected any lesser sanction as being untenable since Dr Porter was “unapologetic and unrepentant” (cf Porter e-mail to Berry, Feb 20, 2018, 8:27 PM) & Carlevale Deposition, **).  When Dr Carlevale, did not concur with the other members of the FSC and the dean, he was encouraged to leave the meeting (Carlevale deposition, **).

3.)   At the meeting among Dr Porter (Porter Deposition, **), Dr Burnside (the Academic Division Chair) (Burnside Deposition, **) asked to discuss the matter with Dean Berry, his terse response to this request was to glibly assert, “the time for discussion is over.”

4.)   When Dr Porter heard that students in his senior research class were disappointed by the lack of support provided by his replacement, he offered to meet with students, off-campus if necessary, to provide needed assistance (Porter e-mail Mar 16, 2018, 8:40 AM endorsed by Smith, Mar 17, 2018 @ 1:43 PM). The Dean again abruptly rejected this request (Berry e-mail, Mar 18, 2018 @ 1:39 PM).

5.)   Recognizing that the presentations of senior research projects was the pinnacle of the Psychology Program, Dr Porter asked if he could attend this public demonstration of students’ research projects.  The Dean rejected his request.  Subsequently, neither the president, dean, nor any of the female faculty members of the psychology department attended the scheduled senior research presentations as they had in the past.

6.)   When Dr Porter learned that one of his former students, who was transgender and schizophrenic and had previously attempted suicide, was experiencing a personal crisis after being advised he was subject to expulsion from the College, he offered to meet with student.  The president rejected this request, claiming that Student Counselling Services would provide adequate support.  The student never attended counseling and tragically, after his graduation the following year, suicide ended his life.

7.)   When Dr Porter offered a private apology to the female members of the Psychology Department (Porter -e-mail, Mar 11, 2018, 9:20 AM), Dr Jones responded immediately, accepting his apology.  Drs Williams and Wyrick did not respond or acknowledge the apology.  Subsequently, the administration did the same, claiming that the situation remained substantially unchanged despite the apology (Roelofs, e-mail, Mar 14, 2018, 9:34 AM).

8.)   When Dr Porter asked for further details and clarification concerning his alleged transgressions, the President indicated only that he (Porter) knew what he had done (Roelofs e-mail, March 15, 2018).

9.)   When Dr Porter requested that the basis for his suspension be reviewed and offered several ways he might begin to re-engage with the campus community (Porter e-mail, Mar 13, 2018 8:21 PM & March 14, 2018, 9:51 AM), the president rejected his request claiming that his presence in the Psychology department “would not be in the best interest of the well-being of students and other faculty of the department” without providing evidence or further explanation (Roelofs email, March 15, 2018).

10.) When the dean was informed of the defamatory e-mails sent by Dr Sergent to members of the Student Government Association and briefed to the Student Board of residents (Dr Smith email,** ), he did nothing to correct the record or counsel Dr Sergent on his violation of ethical standards (Sergent Deposition, **).    

The fundamental obligation of institutions of higher learning is to discover and disseminate the truth.  As Jonathan Haidt recently asserted in a Heterodox Academy blog, teachers have a fiduciary responsibility to support students and seek truth.  The academic freedom necessary to accomplish these tasks is essential to higher learning.  Controversy and disagreements are inherent in the pursuit of truth; they are the stuff of debate and argument which increases understanding and promotes intellectual growth within campus communities. The survey could have provided a foundation for substantive conversations concerning the complex relationship between the College’s commitments to avoid hostile environments and its promises of complete academic freedom.  It was not; it was used as a cudgel to silence a dissenting voice and eliminate a critic of the administration.

The charges against Dr Porter were not investigated by the administration.  No students from the course were ever questions as to the validity of the allegations against him.  No evidence that Dr. Porter lacked either the professional knowledge or skills necessary to serve as a faculty member at Berea College (i.e., competence) was presented. Student ratings from the two previous years placed Dr Porter in the top 5% of Berea College faculty and in the previous decade, over 30 of his students received state or regional awards for the quality of their undergraduate research projects.  Nonetheless, ten weeks after his suspension, a Faculty Appeals Committee, with the dean serving as both prosecutor and direct supervisor of all faculty members involved as adjudicators or witnesses (over Dr Porters objections to the President), a two-day hearing was hastily conducted.  It provided the president with a recommendation supporting Dr Porter’s dismissal for cause.  Dr Porter’s case was appealed to the Executive Committee of the Board of Trustees, but they supported the president’s decision to proceed with dismissal.  A subsequent investigation conducted by the National Association of Scholars strongly supported the academic validity of the survey study, but a strongly worded open letter to the college president received no response (https://www.nas.org/blogs/article/an-open-letter-to-lyle-d-roelofs-president-of-berea-college).

Ironically, the survey itself yielded information that was valid and relevant concerning the inherent tensions between academic freedom and hostile environment protection within the Berea College Campus Community.  Identity (gender and sexual orientation) and beliefs (about social justice and activism) predicted over half the variance in respondents’ perception of hostile environments as described in the survey’s 20 scenarios.  Although explicit support for academic freedom made a small, but significant, contribution to respondents’ judgments about academic freedom, the influence of a prior decision that a situation constituted a hostile environment was many times greater.  After Dr Porter was dismissed, he worked with several students from the course to prepare individual and collective presentations of the results for the MidAmerica Undergraduate Psychology Research Conference, the Kentucky Academy of Sciences, and the Canadian Society for Academic Freedom and Scholarship.  The chair of the Eastern Kentucky University Psychology Department, in an expert witness affidavit, strongly support the survey study as being valid and appropriate.  Three of these four students have now completed advanced degrees including one student who earned Berea College’s first Davies-Jackson Scholarship for two years of study at Cambridge University. 

Fundamental Questions arising from Court Decision for College

Do faculty members at private colleges have a right to freedom of speech, academic freedom, and due process?

Court’s answer: No

Comment: Faculty members at private colleges and universities do not have the automatic rights faculty members at state institutions enjoy.  These include rights enumerated in the First and Fourteenth Amendments to the US Constitution.  However, when College publications explicitly referenced in annual employment contracts promise academic freedom in teaching and research as well as “the Constitutional rights which belong equally to all citizens,” it has an obligation to protect those rights so long as the several caveats concerning the exercise of these rights are not violated.  Although private institutions can claim to be bound only by their own policies and procedures, they must abide by all such policies and procedures not simply the ones that support their political purposes.

Are the fact patterns of actual events relating to Title IX procedures and policies confidential?

Court’s answer: Yes

Comment: While the identity of individuals involved in Title IX procedures may be confidential or private, the actions (especially those determined to be violations of standards leading to administrative sanctions) are not themselves private or confidential (ref, Bonnell v. Lorenzo, 1999).  Publicizing these events (especially when they contain no identifying information and are masked by inclusion with other events and alterations of participant gender and race) does not breach confidentiality requirements.

Is a lack of professional competence a predicate for Dismissal for Cause?

Court answer: No.

Comment: Page 121 of the BC FM provides the college policy for “Professional Competence and Dismissal for Cause” and includes several clauses in the first two paragraphs that indicate that questions of professional competence are a pre-requisite to initiating a dismissal for cause process.  In at least one prior proceeding, a Faculty Appeals Committee decided unanimously that despite egregious conduct, a faculty member was not subject to dismissal because there was no other evidence of his lack of professional competence (Confidential Feedback letter from Dr Megan Hoffman) .  Professional competence is not the same as performance or activity.  Competence refers only to the knowledge and skills necessary to do a job, not the outcomes of any specific act or behavior in any particular situation.  Competence as a predicate for termination of tenure is fundamental to the AAUP Guidelines from which the verbiage in the BC FM was drawn.

Do a college’s promises of “Constitutional rights which belong equally to all citizens” include a fundamental right to due process even if not otherwise or elsewhere explicitly specified?

Court answer: No, the only due process rights are those that are explicitly enumerated elsewhere in the Faculty Manual text.

Comment: Thus, by the College’s claim and the court’s decision, having an individual who is involved in a dispute (i.e., the dean of faculty) serve as investigator, grievant, prosecutor, and supervisor of all faculty witnesses and committee members is permissible because the BC FM does not prohibit these multiple roles or preclude pre-existing bias.  Similarly, rights to confront witnesses, be represented by an attorney, interrogate witnesses who do not testify in person, etc. are not operative since they are not specified in the College’s Professional Competence and Dismissal for Cause procedures.

Do faculty members have a fiduciary responsibility to support student learning and seek the truth?

 Court answer: no – the College is bound only by the rules and regulations explicated in its Faculty Manual.

Comment: It is not possible for rules or regulations to define every aspect of every potential situation.  The Berea College Faculty Manual devotes a full page to presenting promises of academic freedom in teaching and research and also the Constitutional rights of citizens (presumably freedom of speech and assembly and due process).  The Faculty Manual also contains language which implies that its authors were in sympathy with the notion of faculty members’ fiduciary responsibilities to support student learning and seek the truth.  Other specific relevant citations in the BC FM can be found in the Community Aspirations Statement (pg. 72-73) presented previously and the Harassment Policy on page 66 which contains the following Commentary: “In prohibiting harassment in all forms, Berea College seeks to preserve and enhance academic freedom for all members of the campus community.  Nothing in this policy is intended to limit the freedom of inquiry, teaching, or learning necessary to the College’s educational purposes, or to inhibit scholarly, or artistic treatment of subject matter appropriate to an institution of higher education.”

-David Porter