It denied her a ‘meaningful appeal,’ civil liberties group says
A white law professor is waging a two-pronged attack on her university after it sanctioned her for harshly criticizing a black colleague’s leadership.
Diane Klein is challenging the University of La Verne’s decision to put her on unpaid leave, strip her of tenure and fire her in both California state court (below) and through the National Labor Relations Board.
The school ignored its Promotion and Tenure Committee’s unanimous vote to reinstate her and its own policies, failing to give Klein (above) a “meaningful appeal” after the decision was reached, according to the Foundation for Individual Rights in Education, which is assisting Klein.
In a meeting on the future of the law school last fall, Klein told colleagues that they must decide “whether we are willing to assassinate” Assistant Dean Jendayi Saada, who runs the Center for Academic and Bar Readiness.
“I, for one, am willing to do it,” Klein said, because Saada’s leadership was contributing to the academic weakness of many of the law school’s graduates, as reflected by their low bar passage rates.
The university took Klein’s comment literally despite Saada’s own complaint to human resources that Klein was practicing character assassination. Klein accused the administration of also “racializing” a non-racial comment.
The latest dispute concerns whether the university can properly deny Klein an appeal following its decision. It let her give a presentation to the Board of Trustees, which then upheld Provost Jonathan Reed’s decision to strip her tenure. When she appealed, the board told Klein the presentation itself counted as her appeal.
University spokesperson Rod Leveque told The College Fix that it “followed the Faculty Handbook and all appropriate university policies, procedures, and laws in this matter.” The handbook explicitly states that “the hearing in front of the board is the final administrative appeal,” he wrote in an email.
One-day notice to make her case to board after ‘months of silence’
Klein told The Fix she is no longer an employee as of July 31, when the board notified her of its decision. The university has “not provided me with COBRA (health insurance) information,” she wrote in an email last week. “[A]s a woman over 50, in a pandemic, that’s distressing.”
She also can’t get into her office, “which is behind a locked door to which I do not have a key, and contains a significant amount of my personal property (I worked there for 15 years, after all),” Klein added.
Her breach-of-contract lawsuit is scheduled for a status hearing in early October, “thanks both to COVID-19 and the (I believe deliberate) molasses-like progress of the internal administrative process at ULV,” which has deprived her of a salary for all of 2020.
The suit, filed in April, alleges that the university committed “repeated retaliation” against Klein for advocating for faculty rights in her role as “an elected faculty representative.” These actions “escalated dramatically” as she secured changes to institutional policies, including in the Faculty Handbook.
Klein is also appealing the NLRB’s rejection of her complaint, disputing its finding that she is a “managerial employee” not covered by the National Labor Relations Act. The federal body ignored its own precedent by considering her role in the law school, which “has no independent existence,” rather than in “the university as a whole,” her appeal says.
The law professor endured “months of silence” from the university following her lawsuit until it reached out to her lawyer in late July. It offered to let her give a WebEx presentation to the board “the very next day,” she told The Fix.
She rejected the proposal, and the university scheduled it for about a week later, July 30. “I was given 45 minutes. I was not told to whom I would be presenting, or what they had already been told; nor was I told who would be there (including whether my ‘accusers’ would be present),” Klein wrote.
She spoke for roughly 35 minutes in front of less than a third of the 29-member board. (The decision letter names nine members, with one marked “abstention.”) It wasn’t clear to Klein whether this subset was the Human Resources Committee, which she had been told would hear her presentation, or another group.
Klein provided The Fix a copy of her “not quite verbatim” 21-page written presentation to convince the board to reject Provost Reed’s recommendation. (Her lawyer was present but not allowed to speak.)
“To put it bluntly, the administration is asking you to sentence me to ‘the academic death penalty,’” she wrote. “If you do that, you will be ending my career, here or anywhere, forever – a career dedicated to antidiscrimination law and to educating lawyers of color.”
The presentation highlights that she started her teaching career at an historically black university, has taught at a “Hispanic-Serving Institution” and has participated in several diversity and inclusion efforts at ULV. She even declined to chair the Diversity Committee when asked last year, “in order that two more junior colleagues of color have that leadership opportunity.”
She cited her “years of activism” in faculty governance, “and the antagonism that created towards me among administrators,” as the real reason for her dismissal.
“The University Promotion and Tenure Committee unanimously supported me; as do other objective faculty groups and faculty rights organizations,” Klein wrote. Referring to her lawsuit, she added: “The court is likely to, as well.”
‘One cannot appeal a decision that has not yet been made’
Leveque, the university spokesperson, took issue with what he characterized as Klein’s implication that the university ignored the committee’s recommendation.
“The decision in this case was informed by all of the evidence presented,” he wrote, which also included recommendations from the dean, provost and law school’s own Promotion and Tenure Committee, which recommended her tenure be stripped.
“Professor Klein had engaged in both sustained and severe affirmative misconduct of a kind that jeopardizes the University’s ability to carry out its mission,” the law school committee found, according to a June 12 letter from Dean Kevin Marshall (below) that cited the five “Gravest Derelictions of Duty.”
They include her alleged wrongdoing with a few students as well as her “assassinate” remark, which “indicate[s] an intention to harm” Saada “either physically or professionally,” Marshall wrote. That remark was “vile, reprehensible, and has no place in any organization that promotes the free and fair exchange of ideas.”
The university and Klein also fundamentally disagree on the nature of the opportunity it gave her with the board on July 30.
The July 31 one-page letter, notifying Klein that the board upheld the decision, does not refer to her hearing as an “appeal.” It says the hearing was intended to let her “present evidence to refute Provost Reed’s determination to involuntarily terminate your tenure.”
She notified the board Aug. 10 that she planned to appeal its decision. It responded the same day that “you have already exercised your appeal rights” under the Faculty Handbook, and that the chair of the committee, Emmett Terrell, told her “the hearing was the final administrative remedy” and her “final opportunity” to present evidence.
In a blog post last week, FIRE said the university “guarantee[s] the right to appeal a decision of the board of trustees.” Yet it has “failed at nearly every stage to provide Klein with adequate due process,” most recently in its “quite bewildering” interpretation of her board hearing as an appeal.
“A general note to the scholars over at ULV: One cannot appeal a decision that has not yet been made,” the civil liberties group wrote.
FIRE’s accusation “is not true,” spokesperson Leveque told The Fix. “These policies and procedures provide for a fair process and ample opportunity to present evidence.”
No ‘managerial exception’ because the law school isn’t independent
Before her scheduled court date in October, Klein seeks to convince the National Labor Relations Board that it incorrectly judged her a “managerial employee” by conflating the law school with the university itself.
She told The Fix that the July 7 rejection letter from the NLRB did “not yet at all reach the merits of my claim that I was disciplined, fired, and not rehired in retaliation for my efforts to act in concert with my faculty colleagues to improve the terms and conditions of our employment.”
Her July 16 response cites the NLRB’s ruling in a 2014 case involving Pacific Lutheran University, which judged that full-time contingent faculty are not “managerial” and thus are covered by federal law labor, even at private religious schools.
The board wrote in that decision that the “managerial exception” only applies to faculty who “exercise actual or effective decision making authority over policies for the university as a whole,” not just “their own classrooms and labs.”
ULV’s College of Law “does not operate in any meaningful way independently” of the university, which makes “all personnel appointments” and academic program and budget decisions. Even academic policy decisions in the law school “have been made under the guidance” of standards from the American Bar Association, which accredits law schools.
Contrary to the rejection letter’s claim, law faculty neither “participate in the formulation … of management policies” nor act on their own to formulate policy, Klein’s letter continues. It’s irrelevant for managerial status that law faculty are “expected to service” on so-called governance committees.
She also accused the law school administration of “frequently” ignoring written policies for these committees.
IMAGE: Diane Klein/ResearchGate