Navigating the Higher Education Minefield: Protecting Faculty Members’ Rights in Academic Misconduct Cases

Oct. 5, 2023 By Andrew Miltenberg

One of the nation’s premier Title IX attorneys, Andrew Miltenberg, offers important advice to faculty during this fraught time.

I have been seeing more stories lately about faculty members under attack. Are there new risks I face as an academic?

Historically, colleges and universities strove to create environments where spirited intellectual discourse was encouraged. But the landscape has changed in recent years. The issues are becoming more complex and the terrain more treacherous in the age of social media, particularly as focus intensifies on flashpoints like DEI (diversity, equity, and inclusion) statements, pronoun usage expectations, microaggressions, data manipulation, teaching or researching sensitive topics, and sexual misconduct as defined under changing Title IX regulations. Even tenured professors are at grave risk.

What should I know to protect myself against allegations of misconduct?

As a faculty member in the age of cancel culture, your views, your teaching methods, your research, even an offhand comment you make in a departmental meeting, a classroom setting, an interview, or a social media post can put you at risk, and the danger zones are broaden ng. More and more academics find themselves at the center of unexpected and sometimes very public controversy, often with dire consequences. Compounding the problem is the fact that in the internet age, false and misleading information can spread in seconds, making character assassination through online defamation and cyber-libel a perpetual danger. Attacks come from both sides of the political spectrum. Recent examples range from a professor who lost a potential appointment at UCLA because he had questioned the efficacy of diversity statements in a podcast five years earlier, to the University of Florida attempting to bar faculty from serving as expert witnesses in a lawsuit about mail-in balloting because university officials claimed that a suit against the state ran counter to its interests as a state institution.

What is at stake?

If you are accused of misconduct, your entire career hangs in the balance, regardless of tenure. You can lose book deals, speaking engagements, grants, and potential collaborators. Your research can be called into question and your published work pulled from academic journals. You can lose your job, even if you are tenured. Your reputation can be destroyed. Even scholars at the top of their field find themselves unable to get a position anywhere in the world because a Google search links their name to a campus controversy. There is a very real potential that you will be canceled and left to watch everything you have spent your life building vanish.

I am well respected in my department and my field. Will my employer protect me?

No. Years ago, star faculty might have been considered above reproach. Today, administrators and boards of trustees tend to prioritize the perceived safety and comfort of those who raise a complaint. Concerns about public perception, an institution’s reputation, and the impact of a scandal on future enrollment and funding are paramount. Unfortunately, this can set the stage for a rush to judgement that tramples your right to due process. You may find yourself given no chance to respond to the charges of misconduct leveled against you, to learn the identity of your accusers, to cross examine them, or to appear at a hearing to defend yourself—unless you have a skilled, knowledgeable lawyer to represent you. Do not assume the principles of academic freedom or tenure will protect you. Nor can you assume that your employer’s adjudicatory procedures will be fair and equitable. Firing you, even if you are tenured, may be the most expedient way to quell a controversy. This holds true even for Nobel laureates and winners of other prestigious awards, widely published authors, and faculty members who generate tens of millions of dollars a year in research funding. The danger applies even if a misstep or misstatement was unintentional. Many universities, both public and private, take an aggressive, ends-justify-the-means approach to damage control. And the results can be career-ending for you.

My comments/actions were blown out of proportion. Can I share my side of the story with my colleagues and handle the situation on my own?

No. Due process of academic review is not a traditional lawsuit, but it is extremely serious. It is also a moving target. You need a strong, effective legal advocate with expertise in academic due process to protect your rights, your reputation, and your future. Academics who find themselves the target of misconduct accusations often underestimate the gravity of the situation. Your instinct may be to reassure those around you that this is just a misunderstanding; you meant no harm. People often try to explain their version of events to colleagues, students, in class, online, or to the media. This is the most damaging thing you can do. You may be served a restraining order as a result. Close friends may distance themselves from you. You may be barred from your faculty email account, your office, or campus. The committee investigating you is likely to include friends and colleagues you have worked with for years. Despite your shared history, they will likely comb through everything you have said and written for years, interview your current and former students, and compile a report hundreds of pages long. Without an experienced lawyer who specializes in these matters to advocate on your behalf, you may denied due process. More often than not, you will be judged to have violated some subjective standard of conduct. Your only recourse to protect your reputation will be in court. But unless you have legal guidance to help you prepare, it will be too late.

What should I do if I am accused of misconduct?

Do not discuss the situation with anyone. Do not mention it to your colleagues or your students. Avoid social media. Retain a lawyer who specializes in allegations of school and university misconduct and academic due process.

At Nesenoff & Miltenberg, we are recognized leaders in our field. We have extensive experience representing faculty members facing allegations of misconduct and the defamation that accompanies it. Our team has handled cases involving more than 100 higher education institutions in nearly every state.

Due process under the law is a right, not a privilege. We are committed to advocating for your rights.