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.”
Contact Camera Staff Writer Sarah Kuta at 303-473-1106, kutas@dailycamera.com or twitter.com/sarahkuta.
