"CU-Boulder moves to fire professor accused of retaliating against sexual assault victim"
Graduate student received $825,000 in settlement finalized this week
August 7th, 2014
The University of Colorado is moving to fire a tenured faculty member after the Boulder campus paid $825,000 this week to settle a graduate student's allegations that the philosophy professor retaliated against her for reporting she was sexually assaulted by a fellow student.
Chancellor Phil DiStefano recently issued a notice of intent to dismiss associate professor David Barnett, campus spokesman Ryan Huff confirmed to the Daily Camera.
If fired, Barnett would be only the fourth tenured professor ever dismissed by the university in its 138-year history.
Barnett is accused of compiling a 38-page report painting the victim as "sexually promiscuous" and alleging she falsified the report of the assault, according to a notice of intent to sue CU filed by the victim last month.
The move to fire Barnett, who has taught in the philosophy department since 2005, comes as CU already was under federal investigation for possible violations of Title IX, the federal gender-equity law. It also comes six months after a scathing report detailed sexual harassment, bullying and other unprofessional conduct within the philosophy department.
Barnett, 44, declined to comment for this story.
But Brian Moore, Barnett's Denver-based attorney, said that in its treatment of Barnett, CU is "holding up his scalp" to show the rest of the philosophy department the university's tough stance on behaviors described in the January report by the American Philosophical Association Committee on the Status of Women Site Visit Program .
Barnett will fight his firing under claims the university violated his First Amendment right to free speech and the Colorado statute that protects whistleblowers, Moore said.
"Every male member of the CU philosophy department already has had his reputation damaged as a result of the administration's selective release of information," Moore said. "Now, even though professor Barnett is not accused of harassing anyone, the administration is attempting to make him the scapegoat."
CU's Huff said the American Philosophical Association report was commissioned because of "longstanding problems" within the philosophy department, and separately from the events that led to Barnett's dismissal.
"While the events underlying the settlement did not precipitate the APA site visit, they are examples of the behavior that we are working to eradicate from the philosophy department and elsewhere on campus," Huff said.
CU harassment investigation
According to the notice of claim obtained by the Daily Camera, a female graduate student described being sexually assaulted by a male philosophy doctoral student at an off-campus party in August 2012.
Such notices of claim must be filed in advance of suing Colorado public institutions. In this case, CU settled before any lawsuit was filed.
The Camera is neither identifying the woman, because she is the victim of sexual assault, nor the alleged assailant, because he wasn't arrested.
While the case was referred by CU to Boulder police, it was closed without any arrests, according to a police report.
At some point after the alleged sexual assault, the male doctoral student, who is in his mid-30s, finished his studies and was hired by the university as an instructor. The university was not aware of the alleged incident at the time he was hired, Huff said.
In late October 2012, the victim, who is in her late 20s, reported the assault to CU's Office of Discrimination and Harassment.
While such proceedings and their results are confidential, the victim's notice of claim and a Boulder Police Department report show that the investigation found the male student violated the university's sexual harassment policy.
He was suspended from his position as an instructor during the course of the investigation, according to the police report. The university later decided not to renew his instructor contract, Huff said.
After the Office of Discrimination and Harassment concluded its case, Barnett launched his own investigation into the woman's reported sexual assault, according to the victim's notice of claim, which was filed with the Colorado Attorney General's Office on July 3.
According to the notice of claim, Barnett had discussions with university faculty members and students about the victim's sexual history, marital relationship and her sexual behavior on the night of the alleged sexual assault.
The document also said that Barnett told faculty members, university administrators and students that the victim was "sexually promiscuous" and that she falsified the report of the assault. Barnett, the document alleged, wrote that the victim fabricated the sexual assault to cover up the fact that she was cheating on her boyfriend.
Barnett wrote a 38-page report about the victim and sent it to the university, according to the notice of claim.
After receiving that report, the university hired Denver attorney David Fine to conduct an independent investigation into the matter, Huff said. The university will pay Fine $148,589.15 for that work, Huff said.
CU declined to provide the Camera with the results of Fine's investigation, citing confidentiality around matters involving sexual harassment. For the same reason, the university also refused the Camera's request for the 38-page report written by Barnett.
The victim, who declined to speak with the Camera, filed the complaint because Barnett "smeared her reputation" and she wanted to prevent something similar from happening to future victims who report sexual misconduct, her attorney, Debra Katz, said.
"She felt it was very important to bring that issue to the attention of the appropriate parties within the university and not only protect her own rights, but to ensure that other people who come forward and report serious Title IX violations are not retaliated against," Katz said.
Katz said that if the university tolerated retaliation, it would have a "chilling effect" on anyone wishing to come forward to report a violation.
She added that while her client did not ask for Barnett to be dismissed, the decision sends a "very strong message" that the university is serious about disciplining people who violate Title IX.
While not speaking about the allegations against Barnett specifically, Huff said it's important for investigations into possible university policy violations to be conducted by professionals.
"We have established mechanisms with trained professionals who are in charge of conducting investigations," he said. "Having non-trained, non-professional people conducting unauthorized investigations is not appropriate."
'Cloak of secrecy'
Barnett, however, said through his attorney that he never investigated the victim or her sexual assault, but rather wanted to look into the Office of Discrimination and Harassment's handling of the case.
In his report, which Barnett sent only to DiStefano and CU President Bruce Benson, according to his attorney, Barnett described how the Office of Discrimination and Harassment's investigation mischaracterized or excluded information from witnesses.
Moore, Barnett's lawyer, said his client included sworn statements by nearly all of the third-party witnesses cited in the Office of Discrimination and Harassment investigation.
"In speaking with these witnesses and hearing their concerns about the way their testimony had been summarized by ODH, professor Barnett became convinced that ODH had intentionally and systematically manipulated the evidence in order to support a finding of guilt," Moore said.
"Because ODH operates under a cloak of secrecy and without due process, professor Barnett was concerned that this likely was not an isolated incident and felt ethically obligated to do what he could to stop this abuse of authority, and hopefully in the process correct what he views as a miscarriage of justice against his former student."
Huff, CU's spokesman, defended the Office of Discrimination and Harassment and the university, saying that at every juncture, the campus has been fair and has followed policy and procedure.
"At all points, ODH has acted appropriately," Huff said. "An independent review by attorney David Fine supports this."
Moore said Barnett was an unofficial mentor to the accused male instructor, and someone the instructor went to for advice about the profession. Moore added that Barnett took care not to harm the female graduate student's reputation in the course of his probe.
Moore acknowledged that rumors about the victim were circulating in the department, but said those rumors were not started by his client.
Barnett's decision to inform the university of what he saw as an "abuse of power by ODH" and his defense of a student are protected by his constitutional right to free speech and by Colorado whistleblower laws. Moore said.
"We understand the importance of protecting the rights of students and others who come forward to report sexual harassment, regardless of whether or not their allegations are ultimately substantiated," Moore said. "However, it is no violation of those rights to urge that the accused not be convicted of a serious offense in the absence of sufficient evidence."
'A commitment to enforcing the law'
Though she did not go through with a lawsuit, the victim's lawyers wrote that damages caused by Barnett's behavior such as emotional pain and suffering, depression, anxiety and suicidal ideation, damage to educational career and reputational harm, among others, would total $2 million.
The university's settlement of $825,000 with the victim was finalized Tuesday.
Of that money, the victim received $520,000 and her attorneys at Washington, D.C.-based firm Katz, Marshall and Banks received $305,000. The settlement does not constitute an admission of liability or fault on the part of the university.
In the settlement document, the victim alleges that Barnett "unlawfully retaliated" against her in violation of Title IX, the federal gender equity law that prohibits discrimination on the basis of sex.
Under the law, which also protects students from retaliation, gender discrimination includes sexual assault and sexual harassment.
This most recent payout follows a $32,500 settlement CU reached with Sarah Gilchriese — who has agreed to be identified publicly — in May.
Gilchriese sparked a federal investigation of CU last year after filing a complaint with the U.S. Department of Education alleging the university violated Title IX in its handling of her sexual assault.
In 2007, the university settled a Title IX lawsuit and paid $2.5 million to Lisa Simpson and $350,000 to Anne Gilmore, who alleged that they were raped at a party attended by CU football players. The Camera has named Simpson and Gilmore because they sued the university.
In the current case, the victim has been admitted to CU's philosophy doctoral program and intends to remain on the Boulder campus, DiStefano said.
In a statement about the settlement, DiStefano wrote that he's "very pleased" the victim chose to stay at CU.
"We must honor her trust by ensuring not only that she has every opportunity to succeed, but also by taking the steps that will enable every student to thrive in a community free from discrimination and harassment," he wrote. "This settlement is part of our ongoing, intense effort to combat gender discrimination and sexual harassment across the campus."
Though the federal investigation is ongoing, DiStefano also commissioned an independent review of the university's Title IX policies and procedures. That review found the university to be compliant with federal law, and recommended that the campus hire an additional Title IX coordinator for campus-wide oversight.
CU announced in June that it had hired Valerie Simons, a former federal civil rights attorney, for that post. She began work at CU on July 22.
'Responsible leadership' at CU
As colleges and universities across the country grapple with how to make their campuses as safe and welcoming as possible, CU has said it wants to be a leader among its peers in addressing sexual harassment and gender discrimination.
The victim's attorneys applauded CU's hiring of Simons in a statement, and wrote that CU demonstrated "responsible leadership" in the settlement and other "corrective" actions.
"We would not have recommended to our client that she continue her studies at CU-Boulder unless we believed that the university's commitment was both sincere and meaningful," attorneys Lisa Banks and Debra Katz wrote.
In an interview with the Camera, Katz said she was particularly impressed by the university's hiring of Simon, who has a "great reputation" in the civil rights community.
She said it's unusual for a university to handle a situation involving Title IX violations so swiftly and so thoroughly. She pointed to the White House's recent recommendations for handling and preventing sexual assault and sexual harassment on college campuses. The U.S. Department of Education also made public this year the list of campuses being investigated by its office for potential Title IX violations, a list that included CU's Boulder and Denver campuses.
"Fortunately, we're starting to see the universities heed that warning and we think there's been a significant change, and certainly that's what the University of Colorado's actions reflect here," Katz said. "It's not only a commitment to enforcing the law, but to be better."
"Dismissal proceedings, sexual harassment case latest blows to CU-Boulder's philosophy department"
CU officials say positive steps are being taken
August 7th, 2014
The University of Colorado's move to fire tenured faculty member David Barnett is just the latest public blow to the Boulder campus' philosophy department.
Barnett's dismissal proceedings come with the revelation that a now-former instructor within the department was found responsible for violating the university's sexual harassment policy, an offense the instructor is alleged to have committed against a female graduate student.
The university this week paid the female student $825,000 to settle accusations that Barnett retaliated against her after she reported the sexual assault by the instructor, whom the Daily Camera is not identifying because he was not arrested.
These most recent developments come after six months of internal and public turmoil within CU's philosophy department.
In January, the university made public an independent report that documented sexual harassment, bullying and other unprofessional behavior within the department.
The findings of that report led the university to suspended graduate admissions into the department and to replace former department head Graeme Forbes with an outsider, Andy Cowell, who came to philosophy from the linguistics department.
Many members of the department criticized the university's handling of the report, saying that they were told it would remain a private document.
Others denounced the report, and said that its authors were biased in their investigation and writing of the document. And others alleged it was factually inaccurate.
Banned from campus
Then, in early March, the university placed associate philosophy professor Dan Kaufman on paid administrative leave and barred him from campus.
Kaufman's leave concerned faculty members from many departments because he was escorted from his classroom — in front of undergradaute students — by campus police officers.
Faculty members in philosophy were instructed to call police if they saw Kaufman on campus.
More than two months later, and after being assessed by a leading expert in workplace and school violence, Kaufman was allowed back at CU.
No explanation has been given by the university for his banishment or for his return.
The university still has not decided whether to admit graduate philosophy students for the fall of 2015, according to the department's website.
The philosophy department has taken positive steps in recent months to address the climate issues mentioned in the independent report, such as bringing in internal and external experts for training on CU's discrimination and harassment policies, campus spokesman Ryan Huffsaid.
He added that the department has also initiated bystander training for faculty, staff and students encouraging them report actions that are hostile to women and to challenge those who contribute to a hostile environment.
CU also has brought in an external expert and formed an external advisory committee to guide the philosophy department moving forward and to transform it into one of "openness, mutual support and collegiality," Huff said.
"Students defend CU-Boulder philosophy professor under fire as 'excellent teacher'"
August 7th, 2014
Current and former students defended David Barnett on Thursday after learning of the University of Colorado's move to fire the associate philosophy professor, saying he is a good person and a valuable teacher.
Chancellor Phil DiStefano has issued Barnett a notice of intent to dismiss — the first step in the long process to fire a tenured professor — in connection with accusations that Barnett retaliated against a graduate student who reported she was sexually assaulted by a fellow student.
Barnett is accused of compiling a 38-page report painting the victim as "sexually promiscuous" and alleging she falsified the report of the assault, according to the victim's notice of intent to sue CU.
Through his attorney, Barnett claims that the report — which is not publicly available — described inconsistencies in witness testimony about the alleged assault brought before CU's Office of Discrimination and Harassment.
Kyra Rehman, a former undergraduate student in CU's philosophy department, said she was at the party where the alleged sexual assault occurred. She is listed as a witness in a Boulder police report about the incident.
Rehman said Barnett approached her to see whether they could talk about the testimony she provided the Office of Discrimination and Harassment about that night.
Rehman, who said she was friends with both the victim and the alleged assailant, saw a copy of the Office of Discrimination and Harassment's findings and noticed inconsistencies in its depiction of her testimony.
When she talked with Barnett, they only discussed the Office of Discrimination and Harassment findings and her testimony.
"At no point did Barnett make any judgments on anyone involved in the case," Rehman, 24, said in an interview with the Camera. "Our conversation was purely related to ODH and the way they handled this."
"Barnett never, ever told me who he thought was guilty or innocent, or who he thought was right or wrong. He just noticed inconsistencies in the report."
Rebecca Chan, a current doctoral student within the department, also stepped forward to defend Barnett, who she said was her dissertation adviser.
Chan, who started at CU in 2007, said she met Barnett in her first week on campus.
"I've had the chance to get to know him on and off campus, and he is one of the best people I've met," she said. "In addition to being a brilliant philosopher, he is an excellent teacher who can communicate with students on their level and inspires them."
She added that she feels safe coming to him for help with professional and personal problems, and believes that he "saved" at least one suicidal student.
Chan said that Barnett "never said a word" against either the victim or the alleged assailant in the sexual assault case. She said the university's decision to fire Barnett is a "gross overreaction."
"That (Barnett) has retaliated or smeared the name of (the victim) is false," she said.
BFA monitoring the case
Faculty members, many of whom declined to comment on the record for this story, were instructed by email to preserve any records relating to the case because of current or future litigation.
The email named Barnett, the victim and the alleged assailant in the sexual assault.
"Do not discuss this matter with anyone outside the presence of university counsel or the risk management review process," the email from CU's legal office said. "Failure to keep this information confidential may result in a waiver of the attorney/client privilege."
For its part, the body that represents faculty interests on the campus is "monitoring" the processes being followed to terminate Barnett, said Boulder Faculty Assembly chairman Paul Chinowsky.
"It is very rare that the University of Colorado undertakes such processes and we all take this very seriously," he said. "It is clear that there are different perspectives on this issue from the parties involved.
"The BFA is committed to making sure all faculty have the opportunity to have their cases appealed as outlined by the regents' (policies) and we support the process being followed in this specific case."
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