UVM’s Aggressive Evidence Suppression Efforts Pay Off

My appeal of the Vermont Labor Relations Board’s decision dismissing a grievance I filed for wrongful denial of reappointment as an economics teacher was stopped dead in its tracks on April 3, 2019 when the Supreme Court refused to allow incriminating evidence into the record. The evidence proves the University of Vermont (UVM), and UVM’s department of economics, violated my rights as a teacher.

Beginning at the VT Labor Relations Board level (run by Richard Park who has deep connections to UVM), UVM’s evidence suppression efforts were relentless, where their legal team made every attempt at blocking incriminating documents from entering into the record, despite their obvious direct relevance to my wrongful denial grievance.

To show how desperate UVM became about suppressing the truth about my challenging teaching, and how popular it was with students, UVM even moved to block entry to the record of student evaluations of my teaching for the year I was reviewed (which showed I was highly rated). Meanwhile, UVM filed a motion to fish for any dirt on me, my students, and supportive colleagues. The motion demanded that I hand over all private (non-UVM) emails, Verizon text messages, and Facebook messenger texts, a motion UVM lost.

This followed earlier unsuccessful attempts by the Chair at deleting records that contradicted the Chair’s negative (later proven wrong) comments about my highly regarded teaching. Clearly, the University of Vermont had to bury the truth in order to protect the outrageous, and very transparent, efforts by the Chair to remove me from my teaching position, and to win their case.

Meanwhile, my motion filed at the Supreme Court (as part of my appeal) to readmit earlier, unfairly suppressed, evidence (and some new extremely damaging evidence) was blocked by the Supreme Court. The refusal by the Supreme Court to allow into evidence what were obviously relevant and material documents, despite the existence of a statutory basis (3 V.S.A. ยง 815), and case law supporting it (cited in my motion) was why UVM was able to win. The justices rejected the motion, claiming it was not “meritorious,” yet provided no explanation as to why. Let me repeat: No argument was made as to why my motion to add evidence, which proved my argument was correct, was not “meritorious.”

This ruling took place despite justices having in their hands a key incriminating document (teaching evaluation guidelines, authored by the Chair of the department of economics, that proved my procedural rights were violated), a document submitted with my motion. The document showed that the Chair of the economics department was required to conduct reviews of a teacher (and provide feedback) when such reviews are requested by that teacher.

I argued in my motion that there was no basis for removing the document, and that it was material to determining whether I was wrongfully denied reappointment. It was a key piece of the puzzle showing what I had argued in my final brief before the Labor Board was correct — that I was not properly reviewed or provided feedback in a timely manner in between contract renewals at four year intervals. The Chair did not do her job, just as UVM’s Faculty Standards Committee (FSC) concluded. If allowed into the record, the suppressed document would have undermined the Labor Relations Board’s decision to dismiss my grievance.

Evidence was already in the record proving that I had clearly made requests to the Chair asking for reviews of my teaching (shown in emails admitted into evidence) — emails that showed the Chair agreed to conduct such reviews and to provide feedback to me so that I would be sure to be meeting expectations in terms of what and how I should be teaching. Yet the Chair inexplicably never conducted any such reviews, as evidence included in the record showed, and the Supreme Court had in their possession.

By refusing to allow a highly relevant document back into evidence, therefore, justices at the Supreme Court killed my case. The document was earlier submitted to the Labor Relations Board but removed from the record without a fair opportunity for me to object to the removal, yet it showed that the department’s own guidelines and past practices required reviews be done “upon request” by a faculty member. This is key because the Labor Relations Board concluded the Chair was not required to do such reviews, agreeing with UVM’s argument — one of my main grievance points. Violation of one procedural right is grounds for reversal of UVM’s denial of my reappointment.

The requirement to conduct ad-hoc or interim reviews of my teaching was one of the key procedural issues in dispute at the core of my grievance. To repeat, in its defense UVM insisted there was no requirement for the Chair to conduct such reviews in between reappointment evaluations at reappointment intervals. The suppressed document, however, showed them to be wrong. The document contained the Chair’s own words summarizing evaluation guidelines and past practices of the department. And it made clear when any reviews would be required.

For example, it explicitly stated that “upon request” from a faculty member at any time, reviews “must” be carried out. Exactly the type of review I had requested, which the record shows the Chair acknowledged and agreed to do. Yet the Chair never carried out any such reviews, as the record shows, and she did not explain why.

Thus, by suppressing this key document, UVM was allowed to get away with making an erroneous claim that there was no requirement to conduct any interim reviews of my teaching, leading to the dismissal of my grievance. The Vermont Supreme Court thus knowingly allowed UVM to get away with this miscarriage of justice.

Reputation Destruction Tactics Falls Short

The other strategy pursued by UVM and its legal team was reputation destruction. In addition to making sure any incriminating evidence was suppressed, the legal team led by Ritchie Berger, a well-known aggressive fixer (“shark”) attorney for UVM, took all my emails (emails I exchanged with students, colleagues and even lawyers) on UVM servers and tried to find dirt that could be used against me (and a friendly witness), while at the same time denying requests for relevant documents during discovery that were requested by me.

Leaving aside the question whether this violated my attorney-client privilege or FERPA rights of UVM students, UVM tried to use the emails it seized from my email account to smear me (and a witness I called forth from a different department). One email was from me to my wife complaining about how little some of my colleagues knew about non-standard model economics (which I showed during cross examination was in fact quite true).

Of course, none of this had anything to do with the quality of my teaching, which UVM knew was highly regarded because of what former Associate Dean Patty Corcoran wrote about me yet UVM ignored. While these reputation destruction efforts fell short (there wasn’t any real dirt they could find), the document suppression efforts noted above were a success and this is largely why they were able to defeat me at the Labor Board and later when I appealed to the Supreme Court. Evidence is only evidence if it is “in the record”. UVM managed to win based on evidence suppression (viz, technicalities) — keeping some key relevant and incriminating documents out of the record. Also UVM had the law on its side, the application of administrative law (read below).

Academic Freedom v. Administrative Law

A major claim in my grievance was that my academic freedom was violated. However, the facts submitted by me, and my arguments based on those facts to support the claim, went nowhere. Both at the Labor Relations Board, and on appeal at the Supreme Court, facts (in the record) showing the Chair had exaggerated claims about me and my teaching, and outright invented some (all relied on by the Dean to deny my reappointment), were ignored. Why is that?

The main reason for this judicial blindness is because of the application of administrative law in the review of grievances. Both at the Labor Relations Board level, and on appeal at the Supreme Court, the standard of review has nothing to do with the preponderance of the evidence. Instead, any “reasonable” facts presented by UVM (such as words written by the chair negatively reviewing my teaching, even if false) or “findings” of the Labor Board (however one-sided) are enough to decide in favor of denial of a grievance for wrongful termination of employment.

Even if the preponderance of the evidence suggests the Chair was out to get me, and that I was unfairly reviewed, none of this matters when it comes to administrative law, which is biased in favor of the institution, here UVM, and later the Vermont Labor Board upon review of UVM’s actions. It is worth noting, furthermore, that UVM’s collective bargaining agreement with its faculty does not allow grieving unfair reviews by colleagues or the Chair! This is a major defect in that bargaining contract, leaving many non-tenured faculty at the mercy of tenured faculty who can say anything about you if they want to, and remove you from teaching.

Any administrative law expert will tell you that decisions by a public institution — UVM in my case — are viewed with extreme deference toward the institution on matters of reappointment and tenure. In fact, I have yet to find one case where the outcome was in favor of a grievant in a UVM reappointment dispute or tenure-related grievance. This despite a long history of targeting of teachers for political or other reasons. In fact, about 13 years before my case, Dawn Saunders was run out of the same department I was teaching in at UVM (and Harvey Salgo before her in the 1970s). Saunders had been part of the leadership that had just successfully unionized UVM’s faculty, and was at the same time a radical economics professor (like Salgo and me) at UVM (members of the Union of Radical Political Economics, just like me). The Saunders case, like mine, went to the Vermont Supreme Court, to no avail, despite top representation from Vermont attorney, Rich Cassidy. Administrative law, and no doubt UVM’s omnipresence in a small state, made it impossible to win.

Despite showing that the statements made by the Chair in my case had no factual basis, under administrative law precedent these bodies still cannot substitute their judgement for that of UVM and its administrators (Chair and Dean). In fact, even if the Labor Relations Board or Supreme Court justices believed my arguments were correct (as some informed observers concluded, including a former Dean of the College of Arts & Sciences), the standard of review dictates they cannot substitute their judgement for that of UVM, a point UVM’s fixer lawyer reminded them of throughout the ordeal.

But the Labor Relations Board and later Supreme Court justices had a smoking gun email written by the Chair of the department of economics where she revealed to another colleague that the “reason really why” (as opposed to other concocted reasons) I was being kicked out was because of the “content” of my classes. Clearly, as anybody could see, I was denied the right to teach controversial “content” even though I was well known for teaching the economics standard (neoclassical) model fully and fairly. The Chair’s claims to the contrary were all smoke and mirrors, coached by the lawyers to spin “content” into a completely different meaning. In deposing the Chair, I was able to show how this was pure nonsense, but they still continued to try to bury the truth.

On the matter of academic freedom, therefore, the argument (and obvious truth of the denial of my right to freedom of expression as a teacher) was dead on arrival no matter how obvious (e.g., evidence in the record) it was that the chair was “out to get” me, as UVM’s Faculty Standards Committee members concluded (voting for my reappointment unanimously, and writing that I “had met the standard for reappointment”). The Dean, of course, ignored his own advisory committee and its vote for my reappointment the committee sent to him. The Dean makes the final decision and he sided with the Chair.

We Won!

One battle UVM could not win was its attempt to ban cameras from the Labor Board hearings. Their motion to block cameras was lost (we defeated it) in an embarrassing effort by UVM to deny me the right to film a public hearing. Now the footage is being used to tell my story — and how contingent faculty members (non-tenured teachers) have in effect under the law no protection against retaliation from powerful tenured faculty.

By denying my reappointment, a popular-with-students advocate of alternative (and provocative) economic ideas (and competing economic traditions) in the classroom, was silenced. In my case, as I would later learn, I had apparently threatened (and annoyed) tenured faculty (and probably higher-ups) because I called into question the core curriculum embedded in the department of economics at UVM — and inspired students to demand more diversity in that curriculum — even inspiring a movement led by students.

Thank You For All Your Support

One of the biggest victories for me in the entire effort to resist UVM’s efforts to remove me from teaching was to receive such tremendous support from so many people everywhere — both in and around Vermont and from around the world. Without the generous support from hundreds of students, teachers and others concerned about academic freedom of “provocative” professors who won’t toe the line of powerful tenured faculty, I would have been unable to carry on my fight. I would like to thank everybody for their generous donations (to help cover costs of my Supreme Court appeal), and for the emotional and intellectual support given to me while on this journey to right an obvious wrong. Fighting is winning!

Stepping on the toes of certain faculty should not be a reason to be removed from teaching. Yet a former dean of the College of Arts & Sciences concluded after reviewing the record that I was “targeted” for removal because I “pushed the buttons” of certain tenured faculty (one even attempted to bully me in front of students). These faculty members got rid of me because they could, especially with a Chair taking the lead in what clearly was a purge of an unwanted teacher.

But in the end, UVM and its powerful economics department tenure faculty lost the perception battle. UVM may have won in legal venues through legal maneuvering, but most observers remain at best skeptical regarding UVM’s real motives, especially given a long history of scandal up “on the hill” – a home to well-known arrogance and incompetence, particularly regarding some faculty in the department of economics at UVM.

On the issue of arrogance, the department of economics, for example, had for over five years prevented me from attending monthly department meetings and annual retreats (and from being on a department email list), until I discovered there was no rule allowing for this treatment. I was a full-time faculty member who was teaching twice the load of any other faculty (over 3,000 students during the time I was at UVM, 2009-2017) and yet I was not considered a “regular” member of the department, in the Chair’s words in response to my polite request to be allowed to attend in 2010. Finally, after insisting, the department’s old guard relented, but not until 2015. But I was then kicked out based on false claims of “poor” teaching in 2016 at my reappointment review.

What is Next?

Stay tuned for a film trailer to a short documentary currently in production about my story at UVM: Working title: Summa v. UVM: Academic Freedom on Trial in the Green Mountains. It will be informative, objective and factual, mostly covering the drama inside the Labor Board, in addition to what was really at stake at the hearing (the truth about being denied my freedom to teach) — a truth targeted for termination by the film’s star performer, UVM”s fixer, Ritchie Berger.

Berger claims I was denied reappointment because I was a “poor” teacher, despite a mountain of evidence to the contrary, on top of which is a clear pattern of behavior that amounts to railroading of a popular and effective teacher out of academia. Watch Berger deploy his talents for aggressive evidence suppression and attempts at reputation destruction in an effort to make UVM’s case. Then you can be the judge.