February 1, 2007
DePaul and the Duke Lacrosse Case
Aside from their school mascots, there has never been much in common between the Blue Demons of DePaul and the Blue Devils of Duke. About seven years ago Duke beat DePaul in overtime in a memorable game that featured at least six future NBA players. But other than basketball the two schools had little connecting them. Until now, that is.
As the Duke Lacrosse rape hoax unravels and the falsely accused students and their families struggle to put their lives back together, a law suit filed against DePaul university by a former adjunct professor may be a cautionary tale for college administrators and offer a form of recourse for the embattled lacrosse players and their families.
Thomas Klocek, an adjunct professor with an unblemished record of fourteen years of teaching at DePaul University's School for New Learning, was suspended without a hearing after an argument with students who were passing out anti-Israel literature at a student activities fair. In addition to the suspension, the school went on public record with statements describing him as someone who does not respect the religion or ethnicity of others, in effect publicly branding him a bigot. After trying unsuccessfully to get his job back, he obtained counsel and sued the university for breach of contract, violation of due process and defamation of character.
As the case slowly worked its way through the judicial process, DePaul was able get the court to dismiss the due process and the breach of contract complaints. As an adjunct professor, Klocek had essentially no rights, even after fourteen years at the school. He was hired from quarter to quarter and served at the discretion of the department chair or dean who appointed him. The Faculty Handbook rules guaranteed faculty the right to a hearing before any suspension but as an adjunct it was unclear whether the rules protected him.
But the defamation charges were a different story. The presiding judge, in spite of a reputation for being tough on plaintiffs, considered the public statements from school officials so egregious that he refused to dismiss the defamation charges and sent the case on the way towards a trial.
The judge had critical things to say about DePaul's conduct in the case but it is the school's failure to get the defamation charges thrown out that connects Klocek's case to the current mess at Duke. The Duke administration did not have to issue derogatory statements about the lacrosse players, Angry pot-banging students didn't have to parade by the players house with a huge sign saying "castrate". And a group of 88 professors didn't have to publish an ad in the school paper thanking the students for their noisy actions and for not waiting for the legal process to run its course.
The burden of huge legal bills and the public humiliation that have been inflicted on the accused students was aggravated by the actions of Duke administrators, students and faculty. Klocek's case if successful, suggests a way that the students and their families can obtain some redress for the harm that has been done to them. The Duke and DePaul cases are not the first time students or faculty have fallen victim to choruses of faculty and administrators supporting unfair accusations. But the prospect of expensive court verdicts for making slanderous public statements about wrongfully accused students or faculty, may give pause to administrators the next time they consider piling on the accused as the path of least resistance during the next campus based perfect storm of political correctness.
Klocek's misfortunes began when he wandered by a table manned by the Students for Justice in Palestine (SJP) at a student activities fair at DePaul's downtown campus. The group was distributing an anti-Israel leaflet and Klocek after reading it returned to the table to question the one-sidedness of their literature. The discussion turned into a heated argument about the Arab/Israeli conflict after one of the students compared Israel to Nazi Germany.
After Klocek left, the students got in touch with the office of student affairs and complained that they had been offended by the professor. Support for the students was solicited from two faculty advisors, additional faculty members, outside supporters, and from the Chicago office of the Council on American Islamic Relations, all demanding that Klocek be immediately fired and that his actions be publicly condemned.
Without any hearing, Klocek was suspended for the quarter by the Dean of the School for New Learning, relieved of his teaching duties and his previously promised contracts for winter and spring quarters were put in abeyance. This was a particular hardship to Klocek, for whom the adjunct job was his main source of income and which provided him a relatively cheap source of health insurance.
In response to the demand for public rebuke, the president of the university sent out an email to every member of the DePaul community stating that there had been two cases in which faculty members had engaged in some kind of offensive behavior. The names of the alleged offenders and the nature of the offenses were left out of the email but the message indicated that the matters had been handled in such a way as to preserve DePaul's mission as a welcoming institution.
Klocek's dean hoped to keep the story out of the school newspaper and had asked him not to talk to the paper and to stay off campus. No such restrictions were observed by the students who went to the student newspaper, which reported the students' version of the incident along with Klocek's identity, in the DePaulia, the school paper. The reporter had made a last minute phone call to Klocek to try to get his version of events but he wasn't home at the time and the story was written without ever hearing from Klocek.
With the revealing of Klocek's name, the president's earlier email now could only be interpreted as a public denunciation of Klocek, the first of many such public denunciations by the university. It was soon followed by a public apology in the school newspaper for Klocek's behavior by the Dean of the School for New Learning. While the letter did not disclose his name, the article written one week earlier in the newspaper had already made it abundantly clear that the letter was talking about Klocek.
For the next six months Klocek tried to negotiate a return to the classroom. He agreed to a deal to teach a single course in the spring quarter of 2005 in which he would permit the unannounced monitoring of his classes. But shortly before the start of the quarter, in a meeting with the dean of Student affairs, he was told he could teach if he would agree to meet with the students, listen to their complaints and apologize for his conduct.
Klocek had always been more than willing to meet with the students. But to agree to make an apology without even knowing what he was to apologize for was more than he could accept and he decided seek redress through the courts. The school in essence had moved the goal posts by changing the rules for his return to add an additional condition of humiliation. Had they not done that Klocek would certainly have returned to teaching and the legal case would most likely never have come into being.
As soon as Klocek went public with his grievance with DePaul, the story was picked up by a number of blogs and media outlets. The Foundation for Individual Rights in Education (FIRE) picked up his case and wrote letters to the DePaul president on Klocek's behalf. Within a couple of months there were literally thousands of references to the case on the internet as could be ascertained by typing "Klocek, DePaul" into any internet search engine.
The school reacted by sending out public statements claiming that Klocek had been out of control, had screamed at the students and had thrown papers at them. Furthermore they claimed he was using the incident to extort money from the school and hinted that he had mental problems that had contributed to his behavior.
Klocek denied shouting at the students or throwing papers and his denial is backed up by an eyewitness who was seated a few feet away during the entire incident.
Every month the case drags on without a settlement, the stakes get higher. The legal bills continue to rise on both sides and the odds on an amicable settlement decline while the prospect of a contentious and embarrassing trial are enhanced.
It is not hard to imagine what the university was thinking. The administration had told everyone their version of events and Klocek was an adjunct who knew almost no one on the faculty. He is a private person who did not want to make the issue anymore public than it already had become. And he hoped that if he cooperated he could get his job back. The school authorities seemed confident that the case while somewhat embarrassing would be thrown out by the presiding judge.
The whole situation changed at the end of May, 2006, when Judge Stuart Nudelman denied the university's motion for dismissal and gave an excoriating description of their behavior in the case. He said that he had read the entire file, starting with the original Depaulia article, and it was an awful case. Continuing, he said he couldn't understand what had become of DePaul, how the students had become so empowered and speculated that had the kind of atmosphere that this case revealed about DePaul been present when he was a student, he would have received an inferior education. He said he had a great deal of respect for DePaul, knowing many practicing lawyers in Chicago who had graduated from its law school and he mentioned that he had taught courses at the law school himself.
He said if there was any place where people should feel free to express their opinions openly it was at a university. For comparison he brought up the case of Arthur Butz, the Northwestern University professor of electrical engineering, who is notorious for being one of the foremost proponents of the claim that the Holocaust never happened. Butz continues to teach at Northwestern, because terminating his contract on account of his out of class activities would be an abridgement of his First Amendment rights and a blow to academic freedom.
About the defamation charges, he wondered why the president of the university had written letters about Klocek to the Rocky Mountain News and other news outlets. He seemed to imply that as awful as their treatment of Klocek had been, they would have likely gotten away with it if they hadn't gone out of their way to publicly condemn him.
It is now almost eight months since the judge's ruling and the case is moving closer toward a trial. Depositions have been taken from most of the major players and it doesn't look like a settlement is getting any closer. The case looks more and more like it is heading for trial. And if it does, the outcome will have implications for people caught in situations similar to Klocek's.
If Klocek wins, it suggests a way for the students in the Duke lacrosse case to get a redress of grievance. As the Duke case unravels, it has become increasingly transparent that officials at Duke aided and abetted a massive and totally unjustified campaign of denunciation of the accused players and their teammates. Like the officials at DePaul, the Duke administrators can look forward to a few years of costly and embarrassing litigation. And hopefully in the future, college administrators and others will not be so quick to rush to judgment and damage the lives and reputations of members of its community who have fallen victim to unfair accusations.
Jonathan Cohen has covered the Klocek case for American Thinker.