Investigators Say Naval Academy Punished Professor Who Criticized Affirmative Action

January 26, 2011

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.