Plaintiffs, at the request of the Court, respond to the Memorandum of Dr. Rose Bellanca, dated July 9, 1999, reporting the disciplinary suspension of Professor John Bonnell for the fall, 1999 semester, for the reasons set out in that document.
Apparently, the Court has asked for this response because, on May 6, 1999, this matter was remanded to Macomb Community College in the hope that the parties, with certain directions from the Court, could fairly resolve the charges against Professor Bonnell and the current discipline imposed against him.
The Court's remand was followed by a hearing invoked by the College on May 25, 1999, resulting, first, in a finding of probable cause of guilt on four charges, issued by defendant vice president William MacQueen on June 7, 1999, and, next, by Dr. Bellanca's disciplinary suspension of July 9, 1999.
Professor Bonnell has already protested the total lack of due process and fundamental fairness demonstrated by the College's administration in the hearing process of May 25th and the decision by vice president MacQueen of June 7, 1999. Herein, plaintiff will attempt to demonstrate the continued lack of respect for due process, academic freedom, free speech, and the right to protest, along with a certain contempt for a correct report of the facts which are evident by Dr. Bellanca's dictate of punishment.
Dr. Bellanca's memorandum of findings pronounces guilt against Professor Bonnell on three counts, disruption of educational process, insubordination, and breach of confidentiality and retaliation. It then imposes penalties of reprimand, 14 day suspension and one semester suspension, respectively.
Plaintiff will refute the findings of Dr. Bellanca, charge by charge and paragraph by paragraph, to demonstrate the vacuous nature of the verdict of the College Administration, which simply again demonstrates the necessity of equitable intervention by this Court
DISRUPTION OF EDUCATIONAL PROCESS
This charge is divided into five particulars. (Memorandum, p #1). First: "informing your students of the impending suspension on these dates [February 1 and 2, 1999]". This is supposedly a violation of defendant MacQueen's gag order of January 8, 1999. Plaintiff Bonnell's defense:
A. This information was given to students in response to their in-class inquiries directed to Professor Bonnell (see, transcript 5/25/99, p 6, Ex. "A", Plaintiff's Emergency Motion). It was not gratuitous and left plaintiff in the dilemma of either giving a truthful answer or lying to his students.
B. The spirit of MacQueen's gag order was clearly to prevent ridicule of complaining students or their ostracism. Nothing in the professor's announcement was aimed at either proscribed result. It was nothing more than dissemination of information the students were entitled to know.
C. This gag order was, itself, unconstitutional as a violation of Professor Bonnell's right to freedom [of] speech. Connick v. Meyer, 461 U.S. 138 (1983); Baxter v. Department Corrections, 831 F2d 293 (6th Cir. 1987).
The second specification is "telling [students]
… it was their choice whether they should attend class during your suspension."
Professor Bonnell's defense:
A. Plaintiff has had an open and
well known attendance policy continuously for 32 years. Students
who attend regular classes receive no "credit". Students who fail
to attend class lose no "credit". If, however, Professor Bonnell
is absent from class, in an unannounced absence, students who show up for
class and sign an attendance sheet are given a credit for being present
when the professor was absent. Since Bonnell announced his absence
in advance, students got no benefit or detriment from attending or not
attending the classes covered by his three day suspension.
The third specification is that Bonnell was
guilty of "referring to vice president William MacQueen's directive . .
. January 8, 1999, as a 'gag order'". Professor Bonnell's defense:
A. Truth is a defense. Plaintiff invites the Court to read the
January 8, 1999 order set out in Dr. Bellanca's findings, p 3, paragraph
2. This directive could serve as a text book example of an administrative
gag order.
The fourth specification is that Professor
Bonnell reminded students of his policy of rewarding students for not attending
class in his absence. Professor Bonnell's defense:
A. This charge represents a total
misstatement of Plaintiff's attendance policy. Professor Bonnell's
absence was announced in advance to his students. No credit is given
to students who do, or do not, attend his classes in response to announced
absences. Therefore, to charge that Bonnell's policy was responsible
for abnormally low class attendance has no basis in fact. The fact
that his students, without any incentive, boycotted his classes in his
absence, merely demonstrates that the administration, which is supposedly
protecting the interests of college students, is simply out of touch with
the sentiments of the student body, which obviously supports Professor
Bonnell, and rejects the paternalistic and condescending "protection" of
the college.
The fifth specification finds that Bonnell
distributed * * *'s complaint letter to Channel 4 News and The Macomb Daily.
Professor Bonnell's defense:
A. The gag order is per se unconstitutional. See Connick, supra.
B. There was no violation of the Collective Bargaining Agreement, Art.
VIII, Section 7, since by construction and past practice, this section
is meant to protect the teacher from exposure in the complaint process,
not the student. See memorandum of Union President Yizze, March 2,
1999, attached as Exhibit "A".
C. There was no violation of state or federal law in the dissemination
because the student's name was redacted. Professor Bonnell did not
expose the complaining student in any way.
D. The complaint by a student is not an educational record, either
by definition or by case law.
INSUBORDINATION
This finding of guilt is based on plaintiff's discussion of his impending discipline with his students in the weeks of January 17, 1999 and/or January 24, 1999, and in distributing Ms. * * * 's complaint to the media, all in violation of MacQueen's gag order of January 8, 1999. This is merely a rehash of the disruption charge (particular 5) discussed above. However, several arguments contained in the findings of guilt require specific refutation.
The last sentence of page 3 of Dr. Bellanca's memorandum states: "Because individuals who feel aggrieved have the right to be heard, the College cannot and will not tolerate an employee's efforts to discourage complaints and ridicule complainers." This accusation, applied to the facts given herein, is at least inappropriate for two reasons.
First, when Professor Bonnell allowed the public to become aware of the charges against him, rather than discouraging subsequent complaints against him, he actually encouraged any potential complaints which may have been harbored by past or present students. As was recently discovered by a local (state) district Court judge, and in another case by a Macomb medical doctor, one person's complaint in public can be a stimulus for anyone else similarly aggrieved to also come forward. Professor Bonnell has taught his classes in the same manner for 32 years, and opened himself to the possibility of a myriad of potential students who could have been offended by his use of language--although, interestingly enough, so far, even with national publicity, the one complaining student stands alone, against overwhelming support for Professor Bonnell.
Second, airing the complaint, verbatim, to the public does not possibly ridicule that complaint. If ridicule is to be inferred, it must be that the complaint itself is ridiculous. Professor Bonnell has engaged in personal commentary on the complaint on national television (e.g., The Today Show) but for that matter so has * * *. Plaintiff has never distorted the complaint letter nor has he ever identified, in any manner, the author.
On page four, Dr. Bellanca argues that when Bonnell posted * * *'s letter on a departmental bulletin board, and a previous letter from the father of a student, his purpose was to "stifle such complaint. . . ." In fact, the posting could serve only to stifle or intimidate other teachers--certainly not other students. Parenthetically, the continued charge that plaintiff habitually uses the words, "cunt" and "pussy" in his class is knowingly false. Ms. * * * doesn't even allege that Plaintiff uses those words.
In this section Bellanca quotes * * * as complaining that in class plaintiff "laughed out loud and giggled like a little kid in relating [his] handling of complaints from two former students (a woman and a male member of the clergy) . . ." This charge is unveiled for the first time in Bellanca's findings of guilt. It is not in the * * * letter. It was not made part of the record in the hearing of May 25, 1999, or the meeting with the Union Senate on February 5, 1999. Neither Professor Bonnell nor his counsel have ever been informed of the identity or even the existence of the mystery woman or the prelate.
The college reiterates that plaintiff's personal defense of himself, during a time when he was denied any effective legal assistance, made it "perfectly clear to your students what they may expect if they complain about you." Page four. Viewed in a more common sense way, the actions of the administration, effectively suspending the beleaguered professor on three separate but continuous occasions from February 1, 1999 to December 18, 1999, all for the assertion of First Amendment freedoms, is a chilling warning to teachers and students alike as to what they may expect if they dare raise the banner of free speech on campus. Plaintiff wishes to remind the censors of the maxim of the Supreme Court that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
If rightful protest of unconstitutional charges and disabling gag orders is insubordination, then, and only then, Professor Bonnell will sadly plead guilty.
BREACH OF CONFIDENTIALITY AND RETALIATION
This accusation, again, is an obvious rehashment, in new language, of the specifications contained in the two, above, charges. But since it is this finding which resulted in a four month suspension without pay, and came within a whisker of the administration "terminating your employment effective immediately" (page 7), it should not be ignored, but rather it should be exposed to reveal how it contorts the truth to condemn plaintiff to a fate akin to that of the martyr Girolamo Savonarola.
Indeed, Professor Bonnell authored and distributed to the faculty, a satirical piece, entitled, "An Apology: Yes, Virginia, There is a Sanity Clause." Clearly this was in response to the student complaint and, much more importantly, to the handling of the complaint by the administration. Attached to the satire, to give it meaning, was a copy of Ms * * *'s complaint with her name conspicuously redacted. Defendants on page 5 paragraphs 1 and 2 of their indictment find the professor guilty of five "felonies" for this act.
First that he violated the College's policy on sexual harassment. This is untrue. Professor Bonnell's language in class, which related (even according to Ms. * * *'s own written complaint) to literature under discussion in class, cannot by definition be sexual harassment, especially when it is not directed to any student or group of students. Further, the college, itself, recognized this when, at the hearing of December 18, 1998, attended, inter alia, by defendants MacQueen, Demas, and Cousens, vice president MacQueen announced that sex harassment was no longer an issue. See Exhibit "B".
Second, that he violated Article VIII of the Collective Bargaining Agreement by breaching confidentiality with the release of the complaint. This is also untrue. Whereas confidentiality might be breached with the release of the student's name or identifying information, it is hardly breached by the release of a nameless complaint which identifies no one, except Professor Bonnell. Further, the context of Article VIII, and its interpretation by the Union president, indicates that confidentiality is to protect the teacher, not the student. See attached memorandum of March 2, 1999, Exhibit "A".
Third, that he violated the Federal Educational Right to Privacy Act. Again, not true. One, a student complaint is not an educational record, which is protected under the act. Two, if it were, redacting the name of the writer preserves confidentiality. Three, if there is no intention to retaliate, and there was none, there is no violation. The same arguments apply to the claimed Title IX violation and the alleged Elliot-Larson violation.
Dr. Bellanca next, on pages 5 and 6 returns to the theme of sexual harassment with a recitation of five examples of "sexually-laden classroom commentary," without any explanation of why these examples are even mentioned under the heading of breach of confidentiality or retaliation. Of course, the true reason is nothing more than opportunistic shock value. The first three examples have never been leveled against Professor Bonnell. They are totally de novo and the professor was never given a chance to defend himself against them. A finding of guilt without a charge is exactly the type of Star Chamber proceeding of which plaintiff has previously complained to this Court. Rather than evidencing a need to discipline plaintiff, this tactic is yet another grim reminder of the necessity for equitable intervention by this Court to ensure that before Professor Bonnell is thrown to the wolves, he must have a hearing that ensures at least a modicum of due process. Further, if the referred-to commentary, no matter how pejoratively it is presented, was related to course content--and it surely was--it is protected First Amendment speech.
Next, Dr. Bellanca describes Ms. * * *'s complaint as a "colorable complaint for sexual harassment" (whatever that obviously vague phrase may mean) and then notes that Section IIID of the Policy Prohibiting Sex Harassment prohibits retaliation "regardless of whether a policy violation is found." The statement first begs the question of whether plaintiff ever retaliated against * * *. Dr. Bellanca conveniently forgets that this is not a case where sex harassment was charged but not proven; rather it is a case where the charges were dropped by the administration.
Dr. Bellanca states, citing no authority whatsoever, that retaliation and confidentiality concerns "cannot be satisfied simply by redacting the complainant's name from the complaint." Dr. Bellanca charges further without proof, and for the first time, that plaintiff caused Ms. * * * to "suffer anguish", and that he demeaned her and attacked her "credibility." Nothing in the record in the entire process of this case supports these de novo allegations. Further, the administration ensnares itself in its own argument. If allowing anyone to know the nature of the complaint is an offense, then exposing the name of the complainant is surely a serious crime. It was the administration (in Defendant's Answer to this Complaint) who, for the first time, named * * * as the author of the complaint letter. This was done in the face of the fact that Professor Bonnell had religiously protected that name from any public exposure. The fact that the public now knows who filed the complaint is the fault of no one except the defendants herein.
For the administration to ignore that Professor
Bonnell has maintained an unblemished reputation and won the praise and
respect of his students for 32 years, while employing the same teaching
methods complained of here, seems harsh. However, upon a record replete
with inconsistency, false innuendoes and meritless charges, to impose a
Draconian sentence of an additional full semester suspension without pay,
should not be tolerated by this Court.
____(signed) James C. Howarth___
JAMES C. HOWARTH (p15179)
JUAN A. MATEO (p33156)
Attorney for Plaintiffs
645 Griswold, Suite 2000
Detroit, Michigan 48226
(313) 962-3500
Dated: July 14, 1999