U.S. Naval Academy May Have Infringed on Professor’s Rights

Academic freedom advocates say free speech rights violated

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Academic freedom advocates say the U.S. Naval Academy might have infringed on the free speech rights of a professor who says he was recently suspended after students complained about his criticism of the school’s sexual assault policies.

Bruce Fleming, an English professor at the Naval Academy (USNA), was barred from teaching his classes or contacting students at the beginning of last week as the English department investigated complaints by two students. Fleming was permitted to return to his classes last Wednesday.

Fleming previously told the Washington Free Beacon in an interview that he was pressured into the leave of absence with the threat that if he refused, a "lengthy, nasty" investigation run by the "military side" would ensue.

He also raised concerns that the majority of documents in the case folder pertained to his criticism of USNA’s sexual assault prevention policies. He said the materials reviewed for the case suggested "criticism of SAPRO [Sexual Assault Prevention and Response Office] itself was a SAPRO violation."

Contacted again Tuesday, Fleming said in an email that USNA "pays lip service at best to academic freedom."

"We are tenured under AAUP [American Association of University Professors] guidelines, but when the administration wants, they twist AAUP as they choose and really just want obedience," he said.

"[USNA is] run by the military, and even the ostensible civilians are either retired military or minions of the military—hired by them and having to obey them, and not hired if they don't seem quiescent."

Anita Levy, senior program officer for AAUP, said in an interview that while the association’s policies encourage faculty members to keep their teachings pertinent to the subject matter, they also allow for "a great degree of latitude."

"We expect faculty members to exercise a degree of responsibility, but at the same time they have academic freedom both to speak to matters related to faculty governance and to teach the subject matter as they see fit," she said.

Fleming said he has discussed SAPRO policies as an icebreaker at the start of classes and explained his opposition to them in emails to students. He said he has filed complaints with both the U.S. Office of Special Counsel (OSC) and Faculty Senate against Deans Andrew Phillips and Boyd Waite, alleging that they handled the investigation like a SAPRO case and exposed him to "public humiliation." The complaints could take months to resolve.

Academic freedom for professors should be upheld within bounds, said Anne Neal, president of the American Council of Trustees and Alumni, an organization that promotes academic freedom and accountability in higher education.

"The broad principles here are that free speech is a fundamental part of the academic enterprise," she said in an interview, but added "academic freedom is not a license for professional misconduct of illegal actions as a general rule."

Due process is an additional concern, she said.

"Professors are entitled to due process if they are accused of professional misconduct, and it’s typical that they be allowed to keep teaching while being investigated unless they pose an immediate threat."

USNA spokesman Cmdr. John Schofield said in an email statement that the administration disagrees with Fleming’s interpretation of events.

"To be clear, professor Fleming was not ‘suspended’ from class," he said, speaking on behalf of the administration.

"The academic administration worked with professor Fleming and in an effort to ensure the integrity of the inquiry, both parties agreed that professor Fleming should not be in the classroom on Monday, September 16th. The investigation was conducted expeditiously and professor Fleming returned to the classroom on Wednesday, September 18th."

While Schofield said USNA is "unaware" of any further complaints filed by Fleming and to comment would be "inappropriate," he added that the investigation of Fleming "did not focus on criticism about sexual assault prevention and response training at USNA."

"It focused on other alleged inappropriate comments made to his students during a class," he said in the statement. "However, sexual assault prevention and response training is a clear and unquestioned priority at the Naval Academy. We have mandated that training for all faculty, staff, and midshipmen. We remain committed to that training and to the cause of eliminating sexual assault and harassment at this institution."

The two female students who initially filed grievances against Fleming complained about a poem he used in class that they said had racial and sexual overtones, claims  Fleming said were baseless.

Fleming has previously tussled with USNA’s administration before over academic freedom issues.

After Fleming accused the administration of denying him a merit pay raise in 2009 because of his comments criticizing the school’s race-conscious admissions policies, Dean Phillips sent him a warning letter that the administrator said "may not be appealed or grieved." The letter alleged that Fleming had violated AAUP’s 1940 statement of principles requiring faculty members to "exercise appropriate restraint," respect the opinions of others, and make clear that they are not speaking for the institution.

A former AAUP staff member responded to Phillips in a letter arguing that the warning "should be grievable" and that Fleming’s statements were likely protected under a 1964 addition to AAUP guidelines covering "extramural utterances."

However, the dispute was not resolved until OSC conducted an investigation and negotiated an informal settlement in 2011 between Fleming and USNA. The investigation "uncovered evidence indicating that USNA illegally denied the employee a merit pay increase because of his public statements."

"No federal employee should fear that he will be penalized on the job for expressing an opinion on controversial matters of public concern," said William E. Reukauf, associate special counsel, in a press release at the time.

While the most recent incident involves comments Fleming made both inside and outside the classroom, Levy said certain protections still apply.

"In this case it would actually be a matter of faculty governance policy that he was criticizing," she said.

"He has a legitimate right to comment on policies of that nature because they affect a faculty member in the classroom and out of the classroom."

Fleming has said in media interviews that stringent rules at USNA against alcohol use and consensual sex often undermine sexual assault prevention efforts. His comments come amid intense public and congressional scrutiny of a purported rise in sexual assault cases in the military.

However, some experts say sexual assault rates have declined in recent years and argue that surveys used by the military to formulate sexual assault policies are faulty and unreliable.

Daniel Wiser   Email | Full Bio | RSS
Daniel Wiser is an assistant editor of National Affairs. He graduated from UNC-Chapel Hill in May 2013, where he studied Journalism and Political Science and was the State & National Editor for The Daily Tar Heel. He hails from Waxhaw, N.C., and currently lives in Washington, D.C. His Twitter handle is @TheWiserChoice.

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