• July 28, 2014

Investigators Say Naval Academy Punished Professor Who Criticized Affirmative Action

The U.S. Naval Academy has agreed to a legal settlement with a dissident faculty member after a federal investigation found evidence that it had illegally denied him a merit-pay increase to punish him for his public criticism of its affirmative-action policies.

The findings and settlement, announced on Wednesday by the U.S. Office of Special Counsel, represent a significant victory for Bruce E. Fleming, a tenured professor of English. He is the civilian employee who filed a complaint with the federal agency in September 2009 after being denied a merit-pay raise that year.

The office's finding also represents the latest embarrassment related to affirmative action for the Naval Academy, where the superintendent resigned last year in the wake of a scandal over excessive administrative spending related to its diversification efforts and to athletics.

Although the Office of Special Counsel's announcement does not directly mention Mr. Fleming—in keeping with the agency's confidentiality policy—he verified to The Chronicle that he is the unnamed complainant it covers. The office's news release, while noting that the academy admitted no wrongdoing, strongly suggests that the investigation had uncovered enough evidence that the academy violated its employee's First Amendment rights to put its leadership under pressure to reach an informal settlement in the dispute.

William E. Reukauf, the office's associate special counsel, is quoted as praising the Naval Academy for cooperating with the investigation and "avoiding the possibility of protracted litigation" by agreeing to an informal settlement while the investigation was still in progress. The settlement requires both parties to keep its specific terms confidential.

Mr. Fleming, in a written statement, said he was pleased to be able to resolve the dispute without litigation, "though it has taken almost a year and a half and several go-rounds to do so." He added, "The reason I felt it important to pursue this issue is to ensure that an institution whose military members swear to uphold the Constitution do not infringe the civilian rights to free expression the military is meant to protect."

A spokesman for the Naval Academy, Cmdr. Joe Carpenter, responded to the Office of Special Counsel's announcement with a written statement that the Naval Academy and Professor Fleming had reached "a mutually agreeable resolution" of the merit-pay dispute. "The Naval Academy subscribes to and continues to support the academic freedoms afforded faculty" under guidelines set forth by the American Association of University Professors, his statement said.

Dismissal Threat

The complaint that Mr. Fleming filed with the Office of Special Counsel alleged that top Naval Academy officials had denied him a raise recommended by his immediate supervisor, and that they had done so in retaliation for his public assertions that the institution's race-conscious admissions policies were so heavy-handed that they probably violated federal civil-rights laws.

Mr. Fleming, who had criticized the academy and its affirmative-action policies for several years, blamed the alleged crackdown on him on administrators' anger over a widely circulated June 14, 2009, column in an Annapolis newspaper, The Capital, in which he argued that the academy enrolled minority students through a separate, less-demanding admissions process, and that many of those students struggled academically.

His whistle-blower complaint accused the academic dean and provost, Andrew T. Phillips, of taking extraordinary steps to deny him a raise that had been recommended by the English department's chairwoman. The complaint also named the academy's superintendent, Vice Adm. Jeffrey L. Fowler, as partly responsible for the denial of a pay increase. Mr. Phillips would not have acted on his own, argued Mr. Fleming, in taking the steps necessary to block the raise.

The Office of Special Counsel's announcement says its investigation uncovered evidence that the Naval Academy "illegally denied the employee a merit-pay increase because of public statements." It says one academy official, when asked to explain the denial, told other members of the faculty that the man should not be rewarded for the manner in which he had expressed his concerns outside the institution.

The office's announcement also cites as evidence of improper behavior by academy officials a warning letter the employee received a few months later, telling him he could face disciplinary action if he continued to make public statements that his superiors viewed as inappropriate. Last March, Mr. Phillips gave Mr. Fleming a "letter of caution" warning him of possible dismissal for any additional criticisms of affirmative action that the provost viewed as disrespectful of faculty members and students.

A Turning Tide

The warning letter cited cases in which, it alleged, Mr. Fleming had publicly complained of having to "dumb down" the assignments given some minority students and had openly wished to see the Naval Academy sued by "one of the stellar white students rejected to give a seat to a 'diverse' candidate." It accused the professor of conduct in violation of a 1940 statement of principles by the American Association of University Professors, which holds that faculty members should be accurate in their statements, "exercise appropriate restraint," show respect for the opinions of others, and try not to appear to speak for their institution.

Mr. Phillips wrote that the letter "is not a formal disciplinary action, and as such, may not be appealed or grieved," although he said he planned to keep it in his files as evidence of a prior warning to Mr. Fleming.

Last May, B. Robert Kreiser, associate secretary of the AAUP, sent Mr. Phillips a letter arguing that it was the provost's warning to Mr. Fleming that appeared to contradict the association's principles. Mr. Kreiser described the warning as "tantamount to a formal reprimand—a disciplinary action that should be grievable." And, he argued, Mr. Fleming's statements that Mr. Phillips had characterized as violating AAUP principles actually could be viewed as protected under a 1964 AAUP policy on free speech and faculty members' "extramural utterances" as citizens.

Admiral Fowler retired in August, after the Navy Times reported that an investigation by the Navy's inspector general had faulted him for allowing administrators at the academy to lavishly spend poorly tracked funds on the academy's efforts to reach out to women and members of minority groups, and on parties for athletics personnel.

Comments

1. 49k95 - January 26, 2011 at 05:12 pm

In a regular university such a dispute would have taken 10 times longer and in the end the professor would have been either fired or driven out of there. And if he would have refused to leave he would have been brutally marginalized and abused. Period. When would the CHE write about this?

2. rambo - January 26, 2011 at 05:25 pm

to 49k95, yes you're right. but only if the professor opposed affirmative action at a regular university......Why is there an affirmative action programs at all colleges and universities to hire a professor with a disabilities??? ethnic and racial and gender are more important than disability.

3. henr1055 - January 26, 2011 at 05:39 pm

Mr. Flemming also appeared on CSPAN and described how standards were lowered at USNA in order to get higher level athletes so the (all) the academies could be in the BCS. I don't think tax payers money should be used to promote BCS participation. The academies belong in competition with Ivy League and other high level institutions and maintain high admission standards. Mr. Flemming also noted the enlisted people that have been quaried did not care about officers of diversity they cared about having officers that would not get them killed in combat or in high risk jobs such as the deck of an Aircraft Carrier, an engine room, a nuclear reactor chamber or during other types of hazardous duty. I do know there have been many substandard and dangerous officers in our military many of which met unfortunate accidents in Vietnam. If we are going to have these types of substandard officers in the service we don't need to give them a million dollar education at a service academy with the skids greased for them.

4. 49k95 - January 26, 2011 at 06:15 pm

to rambo:

the answer is : to give an illusion of fairness.

be sure that at the university where they make efforts to increase the number of female faculty or from minorities, that is the place where there is the greatest abuse toward them and the biggest cover-upin case someone talks about it.

i am amazed that the dispute described in the article resolved in just a year and a half...

5. 49k95 - January 26, 2011 at 06:25 pm

henr1055,
it is the same situation when you have to lower your standards so that the students (all of them, men and women) will pass the course. i cringe knowing that some of them will design the hotel in which i might stay someday, or the bridge over which i might try to drive and maybe i will not reach the other end. oh, but that already happened in minneapolis...

6. major_ray - January 26, 2011 at 06:29 pm

Affirmative action should have nothing to do with lowered standards. I was a Black student at a white college in NYC. University racists created that environment in the early seventies to prove that Blacks could not suceed. I know for a fact how one college deliberately accepted Black students who were dumber than dirt with promises of financial aid checks. They sat and waited for them to fail while rejecting qualified Black students. What changed everything was an influx of West Indians, including Haitian students, who were just as smart if not smarter that the white students. They had self-esteem while many Black Americans bought into the lies. Soon after that happened, the college graduated the largest number of Black science graduates in its history and 10 out of 12 chemistry majors went on to earn doctorates. This has never happened since that year to my knowledge. I was one of the 10 and I am American. Affirmative action is granted to a host of different groups, including white women and foriegn refugees. Blacks benefit less than any group.

I was PFC combat medic, who served with a light infantry platoon in Vietnam. I went on later to become a major. I excelled because I represent the truth about Black people who are not brainwashed by racists. My academic credentials are superior to 98% of Americans, but when I walk onto a campus, I am asked what team I play on. My PhD is in chemistry.

7. 49k95 - January 26, 2011 at 06:38 pm

major_ray,

i, as a woman, am treated like this too. affirmative action was invented by white male racists. we should have college entrance exams and the results should be public. that would put a damper on their faces when a someone from the minorities or a woman scores the best. hiring should be the same too. who does not want this: white males.

8. major_ray - January 26, 2011 at 07:01 pm

This did happen in Barbados, West Indies when all the exams were graded in England. No matter how well the students thought they did on the exams, the white student in Barbados tested higher than all the Blacks. Years later they decided to assign numbers, not names so no one would know the race of the test taker. Everything changed and the Black students were almost always on top. I agree with you. There should be a blind system. The current system allows tenure to "H---- N------". Look at the complexion of their graduate students. Do you think they will take the risk to create diversity among the students and faculty? They probably feel like creationists in an evolutionary biology class.

9. 49k95 - January 26, 2011 at 07:14 pm

yes, when i took exams, the names were not seen by the graders. and yes the actual system makes them feel like gods...

10. justoneopinion - January 26, 2011 at 07:21 pm

Perhaps the USNA administration needs to read the 1st amendment.

11. 19682010 - January 26, 2011 at 09:09 pm

Kudos to the AAUP for helping this professor preserve his rights to express his opinion. Kudos to the U.S. Office of Special Council for investigating the case and finding a mutually agreeable solution.

12. tappat - January 27, 2011 at 08:50 am

The real issue here is an attack on remedies for the pernicious effects, historical and contemporary, of white privilege. In other matters, authorities have held that faculty can be harassed for any speech connected to their work, even speech required by their work, much more by that not required. But that's not to be, see, for speech that authorities want expressed, in which case, for example, a nasty fellow says what the white privilege lovers want, he is "attacked," and then rescued, under color of "free speech," and white privilege gets bolstered as does the denigration of non-whites, through the speech freely granted this person, but not others, say those who criticize the white privileging system.

13. collegechoice - January 27, 2011 at 09:01 am

If you have 3 openings and 7 qualified applicants, for example, how do you choose?

One way is to choose by public lottery so everyone sees that the selection is random.

This method is not compensatory and does not address white privilege, brown privilege, black privilege, yellow privilege or any other consideration, but it does afford a measure of peace of mind.

14. collegechoice - January 27, 2011 at 09:02 am

The USNA administration, of course, is more than one person, so the person who claims responsibility for this situation gets the credit, or blame. Who might that be?

15. dan_zimmerman - January 27, 2011 at 09:17 am

The claim that white racists created affirmative action to prove that minorities would fail seems unjustified by a few examples where universities have explicitly violated the terms of affirmative action law, which stipulates that "Under the law as written in Executive Orders and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.' (http://www.now.org/nnt/08-95/affirmhs.html). The abuse of a law does not indict its creators.

16. softshellcrab - January 27, 2011 at 10:33 am

Affirmative action is totally wrong. "Let the chips fall where the chips fall." And the whole "diversity" push is just Orwelian newspeak for what is really affirmative action and quotas. Get rid of it all and consider merit only. No favoring any race or gender.

17. dziuk - January 27, 2011 at 11:29 am

Diversity in what? Hair color, height, weight, eye color. number of fillings in your teeth? How about selection on the basis of performance in the field of selection? Diversity doesn't make you any more capable in itself.Philip Dziuk

18. dank48 - January 27, 2011 at 01:20 pm

Rambo, you should be aware that some unscrupulous person has hijacked your alias and is posting nonsense like: "Why is there an affirmative action programs at all colleges and universities to hire a professor with a disabilities??? ethnic and racial and gender are more important than disability."

19. rick1952 - January 27, 2011 at 02:26 pm

@ Softshellcrab - "...consider merit only. No favoring any race or gender." Noble sounding words I have heard often in more than 30 years in higher education. However, they are also hollow and insincere unless you mean that you are willing to work hard to make the pre-college pipeline one based on merit and not on one's wealth. Why is it that more than 50 years after Brown v. Board, our public schools are more segregated than ever? How is it fair and merit-based that resources allocated for schools depend primarily on where you live (affluent community - which tends to be white and suburban - or poor community - which tends to be non-white and urban or rural)?

Opponents of affirmative action need to stop being opponents and start being advocates for merit and opportunity throughout the educational pipeline. There is nothing meritocratic about a system that is based on wealth rather than achievement.

20. 49k95 - January 27, 2011 at 06:20 pm

@rick1952
there should be a way of having good teachers going to teach in the poor districts. maybe for a few years i say. money from government to help the poor districts could help. after that everything should be based on merit. you'd be surprised how well kids from this poor districts would score on tests. way better than some of the rich kids from the "good" districts. it happened and happens in other countries. get informed.

21. stinkcat - January 27, 2011 at 07:49 pm

Part of the problem is that our current affirmative action policies totally ignore the income issue. There are women and minorities of privilige and there are economic disadvantaged white males. Our current laws totally ignore this distinction.

22. rick1952 - January 28, 2011 at 08:56 am

@49595 - I agree that good teachers should be incentivized to teach in high needs/low income schools. However, they are needed for more than a few years. Part of what makes a school, and a school district, high quality, is the ability to attract, retain and develop high quality faculty and staff over a long time period. (Larry Cuban's study of the Austin City School District makes that point clearly.) That takes more than a few years (witness the superficial impact Teach for America has on high needs/low income schools in that regard - great impact that does not last after the TFA'er moves on.)

I know of a number of highly successful schools, some regular public and some charter, in high needs/low income communities. The key is investment in obtaining and developing high quality staff (teaching and administrative), reduction of the bureaucratic encumbrances associated with large, central district offices and their concommitant collective bargaining agreements. All of this requires both reallocation of resources as well as increased resources in certain situations (even high quality staff can be stymied by inadequate facilities.)

I find myself frustrated with hollow chants of "merit only", and "equal treatment for all" when everything in our system of education demonstates that merit has almost nothing to do with access to high quality edcuational programs and equal treatment has never been a hallmark of how resources are provided for education to various communities. The current educational system is a perfect example of how "the rich get richer and the poor get poorer."

Current affirmative action policies and practrices may be flawed but they are better than nothing. I would much prefer a focus on making the system more equitable so that the flawed policies and practices of affirmative action become unnecessary. But if we are unwilling to do that, then we have to learn to live with the flawed alternative we now have.

23. jlf9999 - January 28, 2011 at 01:24 pm

dan_zimmerman- Affirmative action is undoubtedly a poor substitute for what is best but the best, equal education for all, is non-existant in too many minority neighborhhods. Given the military has such a high percantage of minorities, they deserve to have a greater representation in the officer corp. The reasons are obvious. I suggest that if we had a more equal system there would be less need for AA. As it stands, students who are not as preparded academically take remedial classes in every university. Why should the militatry academies be differnt?

24. jlf9999 - January 28, 2011 at 01:35 pm

I am not sure what merit means in the real world. Does it mean those who test better or maybe only over achievers need apply? How about those with the better communication skills or maybe those with the broader and deeprer understanding of the subject material? Maybe it is those who relate better to the broadest range of students. Does politcal ideology have a bearing on hiring?

25. dlws8607 - January 28, 2011 at 10:39 pm

49k95: "i, as a woman, am treated like this too. affirmative action was invented by white male racists. we should have college entrance exams and the results should be public. that would put a damper on their faces when a someone from the minorities or a woman scores the best. hiring should be the same too. who does not want this: white males."

Based on this post, if you are in fact treated poorly, it has less to do with your being female and more to do with your being a misandrist female racist.

26. 49k95 - January 29, 2011 at 09:16 am

dlws8607,

There are countries where there is no affirmative action, they have college entrance exams, and more than 50% of the students in STEM fields are women and/or minorities. No one needs to tell that yu are going to be successful. You know yourself.

Coming to USA and seeing how women and minorities are treated is shocking.

The fact that I am treated poorly is not because I am expressing my opinions. I have learned a long time ago that being in academia you have no rights. Especially the right to speak freely.

Before calling me names you should educate yourself about other educational systems, like Finland's for example. There are many other.

I am not surprised though to see such reaction to my posting, as many people in academia are just gobbling political propaganda (affirmative action) without realizing the destructive effect that it has on education.

Why do you think that students in Finland, Singapore and many other countries score better than United States in the STEM fields?

Never mind. This requires analytical thinking...

27. 49k95 - January 29, 2011 at 09:25 am

Oh, just one more thing for dlws8067:

Affirmative Action is not empowering women nor minorities. It just gives an excuse for failure for unprepared white males.

28. 11122741 - January 30, 2011 at 11:43 am

not one of these comments mention or focus on the failures of parenting or the successes of committed parents under conditions of adversity. As long as these sociological globbins of attributing problems to abtsratcions such as race and so on persist little progress will be made on these problems. No one really wants to talk about the major root cause of poor education ...parents ...because of the fire storm that will create.

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