Some Hard Questions for President Snyder

By Docket Staff

A couple thoughts have been bouncing around our heads since the start of this Ku v. Mitchell saga.  First, why would Professor Raymond Ku—a family man, successful professor, and well-published author—launch himself and his family into such a public and stressful fight against Dean Lawrence Mitchell and Case Western Reserve University if substantial merits didn’t exist?

Second, assuming arguendo that Professor Ku’s allegations of retaliation are true, would any student or staff member in their right mind dare to bring their own concerns to administration after their inconsistent reaction to this current suit? What kind of reputation is the administration of Case Western Reserve University’s highest echelons establishing with this case?

We had released a statement in our first article regarding this Ku v. Mitchell saga inviting attorneys for the parties to contact us at the Docket. Since releasing that statement, we have received an email from Dean Mitchell’s attorneys regarding their filing an emergency motion to strike all “salacious” material from Professor Ku’s complaint and amended complaint. We have since posted that email to our website at cwrulawdocket.com.

We also spoke with Professor Ku’s attorney, Subodh Chandra. On Wednesday, October 6, 2013, some of the Docket staff sat down with Mr. Chandra to get pivotal questions answered to the extent that attorney-client privilege would allow and to find out the thought process behind the complaint that shocked our school to its core.

The first thing that Mr. Chandra discussed was what a difficult time Professor Ku had in deciding whether to file the suit. He knew how difficult it would be for his colleagues and students. For about two years he endured what he experienced. Only when he returned from sabbatical did he decide that Mitchell had given him no choice but to sue—when he’d discovered that Dean Mitchell had rescinded Ku’s co-directorship of the Center for Law, Technology and the Arts (one of the primary roles Ku was hired for) and the correlating stipend associated with that position.

Chandra directed our attention to the differences between Professor Ku’s original complaint and the amended complaint. While some in the community assumed that nothing really new had been alleged, Mr. Chandra pointed out how facts that had been out of order were reorganized, and new material that had come to light that was incorporated pertaining to Staffer #3 and allegations concerning a possible student relationship with Dean Mitchell.

Daniel Dubé has since self-identified himself to the Plain Dealer as Staffer #3 and has publicly proclaimed that he himself witnessed Dean Mitchell retaliate against Professor Ku and that he, Dubé, played a role and was complicit in that retaliation himself.

Chandra relayed to us why Professor Ku had filed this lawsuit. Professor Ku filed this lawsuit to make the law school, and the university at large, live up to its own internal policies and the rule of law. The university has failed to live up to its own reporting and anti-retaliation policies, and this has resulted in public embarrassment, shaming, and negative publicity that impacts not just the institution but the institution’s constituents: its shareholders, alumni, faculty and staff, and students.

Chandra wanted to make this clear: as much as the news media has made this a case about sex and has run with the raunchier details of the complaint, it is ignoring the real issue. This is a case about retaliation, plain and simple.

Did Professor Ku, within his duties as an associate dean and professor at the time of the events, have a reasonable and good-faith belief about situations involving Dean Lawrence Mitchell, to make him think that sexual harassment was taking place at our law school, so much so that his reporting of the sexual harassment, per the university’s own policies, was not optional but mandatory.

For Professor Ku, the sexual harassment was three-tiered. It was based on (1) personal observation, (2) firsthand accounts by individuals claiming to have experienced the harassment, and (3) individuals telling him of yet other individuals who had themselves experienced that harassment. The foundation underneath those tiers was information Professor Ku and others had gathered about Mitchell’s background at George Washington Law School. To Professor Ku, reporting wasn’t optional under university policy.

Is it possible that the uncertain times we live in have become a breeding ground for fear, which, in turn, has led to these pivotal issues being swept under the rug to avoid rocking the boat?

Case Western Reserve University’s response has been paradoxical, to say the least. On one hand, they categorically deny retaliation, and on the other hand they make claims to having begun an independent review of the matter; yet we are expected to trust that their “independent” review isn’t as much a sham as the harassment-reporting policy.

Sexual harassment and retaliation are forbidden by university policies. This is a fact. No one at the university is permitted to engage in this behavior, no matter their position. We are not satisfied by reassurances that we have received thus far. We want Case Western Reserve University to prove to us that concerns were and will be addressed and not buried.

We want proof that investigations were and are conducted in a fair and independent manner. We are not satisfied by dismissive statements like “there was no retaliation.” Conclusory statements such as those are helpful to no one. They score no points on a law-school exam, and they certainly don’t reassure students in the least.

We are aware that the university is the behemoth, and we are the bees. But, we have a right as students to ask questions, engage in the issues, and take an active role in shaping this institution into the positive, educational training-ground it is intended to be. We hope Case Western University board members are likewise ensuring that the management of their institution is being conducted in a lawful manner. How can an impartial inquiry occur without the board stepping in?

From what we have seen thus far, this is shaping up to be a nasty, drawn-out battle, and the vortex of public exposure gets larger with each passing day. Someone will emerge the victor, but at what cost? We do not want to see our university, and especially our law school, reduced to scorched earth in the aftermath of this battle. But we also do not want our institution to continue operating at status quo if that means its staff, professors, and students are subjected to fear, sexual harassment, and retaliation.

To CWRU President Barbara Snyder, we respectfully ask these hard questions and kindly request that you answer them in a timely manner.

Image

CWRU President Snyder
Photo: case.edu

1. Will the university board organize an independent review of the harassment policy, the provost’s, president’s, and diversity offices’ adherence to this policy and any violations that may have occurred in the case at hand? Or will they only investigate Mitchell’s conduct, completely disregarding what many consider to be the core issue with the university administration’s failure to follow its reporting and anti-retaliation policies?

Please be candid: who specifically will be conducting the review? To whom will they report? Will those parties mentioned in the suit’s allegations, such as the provost and president, be sufficiently removed from this process to make it resemble independence and fairness?

2. How do you plan to restore faith in a harassment-reporting policy that many now see as a Venus fly trap intended to attract those willing to report violations but that ensnares those who report against favored or protected individuals?

3. When will we have an acting and empowered dean to bring functionality to the administration again and morale back to students, faculty, and staff?

4. Can the law school and the university afford to continue with litigation in what seems to even a layman a clear case of retaliation? We urge the administration to consider more efficient, less embarrassing, and more reasonable paths to resolution in this matter. The longer this issue drags out, the harder it is for all of us.

These are not rhetorical questions. We expect candor from the university we hired to educate us. As future lawyers, we won’t accept a Potemkin village and will see through any façade erected to make us feel that all is well. Reminding us that there is a new curriculum (which doesn’t seem to amount to more than shifting around the furniture on the Titanic) will not make us look away from the real issues.

In fact, please don’t bring up the new curriculum in regards to this lawsuit. Again. Ever. It insults our intelligence. We expect accountability from the university we hired to educate us. We have great faith in and respect for our law-school faculty—including Professor Ku, who has stood alone in this for far too long—and hope to regain faith in our university administration. Nothing more, nothing less.

To Students, Faculty, and Staff at the Law School

Make your voice heard. We welcome anonymous or named opinions submitted to the Docket at casedocket@gmail.com.

3 thoughts on “Some Hard Questions for President Snyder

  1. This is a very well written and compelling piece, by far the best I’ve read in connection with this nightmare. You’re absolutely right: the issue is whether there was retaliation. The “salaciousness” Ku is accused of hurling around as a weapon is not about whether Lawrence Mitchell was right in so radically altering the size, demographics, and financial aid policies of the law school. And it is not even about whether Mitchell is an ethical significant other–it’s about the things that did or not give Ku reason to believe Mitchell had engaged in unlawful behavior at Case. It is deeply troubling too that Daniel Dubé, who was brought by Mitchell from GW to work for him here, now is willing to identify himself and claims he was both complicit in retaliating against Ku and was himself on the receiving end of a sexual proposition from MItchell.

    Let me be clear: I don’t give a damn who Mitchell has, will, or wants to sleep with. What I do give a damn about is whether Ku had reason to believe Mitchell was engaged in behavior that would subject the school to liability and threaten to significantly disrupt the law school as a workplace.

    Case professors and administrators may not be prohibited by university policy from engaging in intimate relationships with either employees or students over whom they can exercise authority, but the vast majority of my peers (I received my J.D. in 1984) and juniors in every professional environment I’ve ever worked in would have been deeply troubled by such relationships, not only as an ethical matter (though certainly as that) but also as a potential source of liability and significant workplace disruption. It seems unlikely to me (and to an awful lot of people I know and respect) that anyone could so thoroughly compartmentalize his emotional life that he could have or even suggest an intimate relationship to someone and still maintain professional objectivity in evaluating his or her performance as an employee or a student. As a result, the employee or student is put into an impossible bind: you never want to displease someone who can determine your professional fate.

    In the end the thing you’re most right about is this: the worst thing possible for the university would be to drag this nightmare out.

    • The retaliation laws are often appealed to without much basis in fact. But this looks a little more serious than most cases
      Mitchell and Provost should resign
      If the Pres was involved she will have to follow suit.

  2. Good luck recruiting talent or students to the law school over the next 3-4 years, even IF this passes quickly. The University’s response has been subpar at best, and crippling at the very worst. If Snyder doesn’t act and fast, all her accolades over the last few years will be tarnished forever.

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