I. The Tyranny of the Campus HR Department
At Allen Harris, we are seeing an increasing trend that attacks faculty rights on campus. Colleges and universities are ceding supervision of faculty to their human resource departments. It is a growing trend that students and colleagues routinely weaponize petty grievances to drag faculty through investigations that, even if they ultimately result in exoneration, are so exhausting and time-consuming that the process is the punishment in and of itself. At Allen Harris, we have multiple cases where universities left our clients with no other option but to sue . . . and win. Yet the HR investigations for the sake of investigations are best stifled at the outset so it never comes to that. We offer some tips here on how to do that.
When an HR office begins what we call an investigation for the sake of investigation, the HR officers usually refuse to identify any policies at all. They will just demand that faculty appear for an interrogation. Typically, these interrogations are conducted by individuals with little or no training. To be more precise, their training is usually awful. In one case, the HR officer had completed a “Ph.D.” in education, but the supposed “scholarship” turned out to consist of interviewing a handful of campus residential life administrators, no doubt the HR officer’s friends at an earlier stage in her career. The “method” disclosed in the dissertation was basically that administrators’ lived experience had to be believed—because, well, of course it does.
This is caliber of professional to which the presidents and provosts of contemporary universities are subordinating faculty, many of whom are leading intellectuals in their fields. Famously (or infamously), the professor who revolutionized the teaching of organic chemistry was fired at New York University after disgruntled students complained that he graded too hard. No student grievance is too petty that it cannot be weaponized in HR investigations. And if an initial complaint isn’t enough, an investigation for the sake of investigation will attempt to uncover more.
In the interrogations that follow, it is not uncommon for the HR office to violate existing policies and rules with impunity. Not only is academic freedom cast aside; the process and procedures specified in campus handbooks are ignored. But there is consistency: to the extent that rules either 1) grant faculty members due process rights or 2) eliminate accusations, e.g. because they are too trivial, the HR offices will typically brush these rules aside.
For example, does the campus handbook set a time limit within which a student is required to complain about a grade—or forever hold their peace? Such policies are sensible, and they are familiar in the law as “statutes of limitations.” Yet HR offices will entertain petty grievances dredged up long after the fact. Unfortunately, this happens all too frequently, sometimes at the HR department’s instigation—for example, when a professor becomes suddenly unpopular for saying something that makes students feel “uncomfortable.”
We have not only seen complaints raised long after explicit deadlines have passed. We have seen HR departments go after faculty because of complaints raised even after a student has graduated. And, once an investigation is opened, nothing will prevent the HR department from contacting alumni who may have taken a faculty member’s course years in the past, usually despite the fact that the complainant raised no complaint whatsoever at the time. HR offices will also reopen old, settled grievances from years gone by to see if new evidence can be dredged up or construed to ruin a faculty member.
II. The Anatomy of a Campus HR Office Investigation
There seems to be a pattern to HR office investigations for the sake of investigation.
- HR officers typically refuse to identify any specific rules that they believe have allegedly been broken, often citing to vague things like the “values” of the university or “community” values.
- The HR office also refuses to identify the accuser.
- The accused faculty member must guess at the accusations during an interrogation, based upon the questions asked and the context in which they are asked. Often, the faculty member will be asked about incidents going back years that they barely even remember – and sometimes punished for providing “false” information if they do not recall them accurately. In this context, “false” is usually equated with anything that contradicts the account of an accuser.
- The HR department will usually refuse to provide the faculty member any evidence, at least until after HR has reached a decision.
- The HR office typically searches only for inculpatory evidence, seizing, for example, on the one student who wrote a negative evaluation despite years of accumulated, glowing student evaluations.
- The faculty member who stands accused has little or no chance to refute the evidence.
- Another consistent trick of the trade is to issue a blanket no- contact order that forbids the faculty member from contacting known or potential witnesses as “retaliation.”
In such an environment, it is also hardly surprising that there is no presumption of innocence. In one investigation for the sake of investigation, Allen Harris’ client refused to admit to plainly outlandish accusations, many of which could not possibly be true. For example, the client was accused of harassment by calling a student by telephone; yet the client never had the student’s number in the first place. In the face of the denial by the faculty member, the HR officer retorted, “Well if what you say is true, then why are we here!?”
III. No Accusation or Imagined Infraction Is Too Trivial
Here are some issues that, in our practice, campus HR departments have investigated for the sake of investigation:
- Hanging a movie poster in a faculty office that the movie director had personally autographed.
- Locking the back door of a laboratory.
- Having alcohol at a university function where alcohol was served as allowed by university rules.
- Instructing an undergraduate that the faculty member’s recommendation was needed to get into graduate school.
- Discussing sex in a class whose topic and subject matter is sexuality.
- Refusing to write an undergraduate recommendation after the student failed to provide application materials.
- Paying a student to housesit at rates approximately 100 times the market rate for such services.
- Exchanging gardening pictures of flowers with a staff member.
- Asking a student to remove a coat in a music conducting class so that the instructor could see the student’s hand and arm movements.
- Exchanging “dad jokes” with a staff member.
- Pounding a fist on the conference table during a faculty meeting.
- Giving a bad grade in a grammar class, despite the grade being given according to objective criteria set forth in the syllabus.
These kinds of investigations go beyond retaliating against faculty for committing what we call “thought crimes,” that is, expressing heretical points of view on campus. Frequently, expressing unpopular opinions exposes faculty (and students) to a cacophony of complaints, which universities try to parlay into independent, justifiable grounds to punish or fire faculty. This is an effort to disguise retaliation for exercising free speech as some sort of oversight of faculty teaching.
Investigations for the sake of investigation are different. HR departments not only investigate trivial grievances and gossip; they do so even without any retaliatory motive. The trend is to weaponize gossip and disgruntled students’ petty complaints as an end in itself.
And HR departments do not stop there. They find faculty “responsible” for undefined and undefinable misconduct, nowhere specified in faculty handbooks, codes of conduct, or anywhere else. These investigations are used to deny faculty promotion, remove them from the classroom, and even terminate them.
IV. What Can Be Done?
There are some techniques of administrative guerilla warfare that faculty should be aware of. First, we recommend that, if you face an HR investigation for the sake of investigation, hire experienced attorneys who understand the world of higher education.
Second, go on the market. Some faculty have market power and can simply move laterally. Sadly, there is not a functioning market for talent in most humanities disciplines, and professors at regional universities may be hard pressed to move laterally. But ultimately, telling the university to “take this job and shove it” will be your best option. You may need the advice of an attorney to negotiate confidentiality and severance, if need be, depending on the accusations that the HR department has manufactured.
Third, faculty should consider filing a grievance against the HR department. Where the HR department’s officers are breaking the rules, use the rules against them. This will seldom make the university reign in its HR office. But it does create a record of the university’s breach of contract, violation of due process (at state schools), and arbitrary disregard of its own rules.
Fourth and related: document, document, document. Whenever the HR office refuses to identify rules, refuses to identify policies that authorize its intrusion into the classroom or into scholarly activity, refuses to provide evidence, refuses to specify charges, you must repeatedly ask for it. Even if the HR office ignores your messages or refuses to answer them outright, ask again and again. All of these messages should be sent in a professional tone and vetted with your attorney. Little by little, they create a record of the university’s arbitrary action.
Fifth, some faculty retain the remnants of self-governance on campus through faculty senates or, in some cases, a sympathetic dean or other campus officers. If there are procedures for bringing matters to the full faculty, you should try to do so. In the best-case scenario, the faculty may take action to safeguard the intrusion of HR dominance over the mission of the university; but even where the faculty remains supine, you still need to document, document, document.
Sixth, have an experienced higher education attorney write a letter threatening legal action if the university does not abide by its own rules. Potentially, if you are at a state university, you may have due process rights that the HR office is trampling underfoot. Very rarely will a university back down, especially not in writing, but it is our experience that universities will often stop short of imposing the harshest sanctions and instead insist on some sort of “training,” usually the banal HR videos or “diversity, equity, and inclusion” materials.
Finally, if all else fails, you may need to take legal action. This is, of course, the last resort. It is expensive, grueling, and always uncertain. The best way to avoid litigation is to get experienced attorneys involved early, attorneys who understand how universities work and understand their dysfunction.
