Scott Abbott's Refutal of UVU Statement Regarding Dr. Michael J. Shively Investigation

THE DAVID R. KELLER CHAPTER OF THE AAUP AT UVU
FRIDAY, NOVEMBER 15, 2019
UVU Statement Regarding Dr. Michael J. Shively Investigation: Annotated
Saturday, November 9, 2019

UVU Statement Regarding Dr. Michael J. Shively Investigation
Annotated

Dr. Michael J. Shively was a full-time professor of biology in the College of Science at Utah Valley University (UVU). His death was a very sad event, and the University has reached out to his family with its sincere condolences.

A UVU professor released an open letter about UVU’s investigation of Dr. Shively and allegations made against him.
Additionally, a statement for the UVU Chapter of the American Association of University Professors has been posted on their Chapter’s blog.

Over the past year, University leaders received numerous serious complaints about Dr. Shively from students, faculty, and others.

The letter Mike Shively received on March 25, 2019, the day he was suspended, said that “We have received several complaints that you have engaged in the following misconduct. . . .” The
UVU statement inflates “several complaints” to “numerous serious complaints.”

The University was obligated to investigate and to protect all who were involved and did so in accordance with UVU policy and applicable law.

Policy 648, the policy on faculty termination the administration relied on, is flawed in several ways and is currently being revised by the UVU Faculty Senate. Even so, the policy could have been interpreted and implemented in ways that would have afforded Mike Shively a more robust due process. Doing so would have given those of us who work at UVU a sense that fairness and care are as important as the “applicable law.”

Due to the nature and seriousness of the allegations, Dr. Shively was placed on paid non-disciplinary administrative leave (“suspension pending action”) per UVU Policy 648.

The letter stated that Mike was “suspended with pay” . . . “(Suspension Pending Action).” The UVU statement adds, in italics: “paid non-disciplinary administrative leave.” The reason for this addition is that policy allows UVU to investigate without revealing names or details if the leave is non-disciplinary. The suspension and investigation certainly felt disciplinary to Mike.

UVU hired an experienced outside investigator and a separate external academic expert to review the allegations and to ensure a fair and objective process.

The experienced outside investigator was a lawyer with no expertise to evaluate Mike’s teaching or grading. The external academic expert was a long-time adversary of Mike’s. That Mike’s textbook and teaching and grading practices were under investigation while he was suspended was an administrative overreach. Faculty have the academic freedom to teach their classes as they see fit, subject to periodic evaluations from their peers and not from administrators or investigating lawyers.

Dr. Shively was informed of the details of the allegations orally and in writing, including when he reviewed a draft of the investigation report. He also provided detailed verbal and written responses during the process.

Mike Shively was allowed to read a draft of the investigation four months after he was suspended. For some unexplained reason, his time with the report was limited to two hours. Until then, he was left to intuit the details of the allegations and the identities of the accusers from the questions asked during the ongoing interrogations.

Due to the number of allegations, complainants, and witnesses, and to ensure the process was thorough, independent, and allowed Dr. Shively to respond, the investigation took four months.

UVU took its time with the nearly five-month investigation. Mike, however, was required to meet strict deadlines with his responses. At one point he asked for a delay because he was hospitalized and was told that UVU had no obligation to allow that.

The open letter referenced allegations made against Dr. Shively. The UVU investigation was in response to allegations that included the following, all of which would be violations of UVU policies and the UVU Code of Conduct:

[in what follows, note the changes from the original letter that announced Mike’s suspension]

improper financial gain from textbook royalties;
“Requiring course books and receiving royalties in violation of . . .”
intimidation and bullying of students and colleagues;

“ Intimidation and threat towards students and employees” was the original claim. Bullying is an easier standard to meet than threat, making this statement potentially more believable than would threat. An actual threat, as Professor Alex Simon has pointed out, would require involvement of the police.
violation of the academic freedom of colleagues;

No change to this phrase. Note, however, that the claim that follows represents a violation of Mike’s own academic freedom to teach a course according to his professional sense for how best to do so.

arbitrary and capricious course requirements and grading practices, resulting in undue stress to students;

Mike’s challenging anatomy classes indeed caused stress. Should he, then, have taught an easier course? In any case, this is the business of the Biology Department and not of administrative investigators. The single complaint that related to teaching was “Arbitrary and capricious course requirements and grading.” Why, then, was his book in question, and why was it sent to an outside evaluator, effectively lengthening the investigation that was already causing Mike severe distress.
discrimination;

The original complaint was “Discrimination and harassment on the basis of protected class.” Why was the harassment claim dropped? Perhaps it was determined to be unfounded in the final report?

and retaliation.
There was no claim of retaliation in the letter that suspended Mike. The letter ended, as such letters do, with a warning against retaliation against any of the complainants.
Most of the allegations were substantiated.

This statement—a pdf of the updated file was published by the UVU Review—feels defamatory. Isn’t UVU required to keep personnel information private? Did the report or the final decision really find this? Which of the allegations added up to a majority? The final report should be made public so we can see if this statement is in fact true.

The University had just completed its review of the findings of the investigation and was discussing next steps with Dr. Shively’s legal counsel when it learned of Dr. Shively’s passing.

Mike was suspended on March 25. He died on August 19, nearly five months later. He had been told that he would remain suspended into the Fall semester and thus could not have classes scheduled for him. He had not received word of any final decision. This statement suggests a possible settlement that never occurred.
As with any complaint of this nature against a tenured faculty member, had this matter moved to a formal disciplinary phase, UVU policy provides the right to a formal written charge, an informal conference with the University’s president or her designee, a hearing before a faculty committee, legal representation, and other due process protections.

This makes it clear that the listed due process protections (formal written charges, etc.) were not available during the course of the investigation. Why not? Remember the “fair and objective process” this statement averred at the beginning and that it comes back to in the next paragraph? This was anything but a fair and objective process.

UVU is committed to providing safety and fairness for all students, faculty, and staff. As such, the University follows a careful, thorough, and objective process when presented with allegations of misconduct.

In a meeting of members of the UVU AAUP Chapter earlier this week, faculty discussed four recent case histories of similar
investigations, one lasting seven months, another an entire year. In each case, UVU counsel denied or skirted due process and exerted legal pressure on faculty who had no legal support of their own. Three of the cases ended with decisions favorable to the faculty (but without recognition of the enormous stress involved over long months) and one ended with UVU agreeing to settle the case with payments to the faculty member.

Addendum: since posting this and after the AAUP discussion of four recent cases, four additional members of the UVU staff or faculty have contacted AAUP members with similar stories: 1. accused, 2. investigated without having access to information necessary for their defense, 3. investigations that go on for months and even, in one case, a full year.

POSTED BY SCOTT ABBOTT AT 8:43 PM NO COMMENTS:
LABELS: AAUP RESPONSE, PROFESSOR MIKE SHIVELY, UVU
WEDNESDAY, NOVEMBER 13, 2019

Statement on the Suspension of Professor Mike Shively at UVU

Our colleague, Professor Michael Shively, passed away on the evening of August 19, 2019. Mike joined the UVU faculty in 1992 with advanced degrees in anatomy and veterinary science. He served as President of the Faculty Senate and as Department Chair. He was the Faculty Athletic Representative, a role he relished as he played his trumpet at many athletic events. Over the course of his teaching career he taught thousands of students in his anatomy and physiology classes and was honored with numerous teaching awards. Students found his demanding classes key components for admission into medical, dental, and nursing schools.

Although “Rate My Professors” is an imperfect source, it is informative to see what students posted there about Mike’s anatomy class. Five recent, representative examples:

AWSOME, 5 out of 5 rating
Anatomy is the hardest class you will probably ever take, no matter who it is from. But taking it from Shively will probably be the best decision you make. He is extremely caring and will answer any of your questions with respect. He was my favorite professor of all time, and I wish I could take physiology from him next semester!!

AWFUL, 1 out of 5 rating:
Shively does NOT prepare you for his tests and he does not treat this course like an introductory course. I put in an inordinate amount of hours into this class and I haven’t learned a single thing. The average score for his tests was 30-40% and he hardly curves it. DO NOT TAKE THIS CLASS if you don’t want to waste your time and money.
GOOD, 4 out of 5 rating: This is THE hardest class I’ve ever taken. Lab is much easier than lecture for most people, but not impossible. Dr. Shively seems scary because his tests are HARD, but he’s hilarious, with crazy raccoon stories (ask him about that) and jokes. Taking him for lecture is a good idea, as he writes the lecture tests and is helpful.

He’s a genius AWESOME, 5 out of 5 rating:
TAKE THE HONORS VERSION OF ANATOMY!!!!!!!!!!!!! It is the same material as
the other anatomy classes just not a lecture hall and the average grade was an A-. This was the best choice I made. My class had 12 people in it and we all got super tight, even Shively. He is the smartest person and invited us over to his house to study for the final.

AWFUL, 1 out of 5 rating:
this was a very difficult class. When people say this class is hard, they are not kidding at all. I’ve met other students from different schools that took the same class and got A’s without as much effort.

A 2018 student wrote a long letter of gratitude to Mike that included these thoughts:

You didn’t just give us a lecture; you gave us stories, hilarious jokes, deep real-life applications and humbling moments. . . . Yes, your class was one of the most difficult I’ve ever taken, but you taught us so much because of that. You taught us how to work hard, harder than we ever had before, and how to be self-reliant. You taught us how to push ourselves to the limit and hold ourselves to high standards. You taught me that I had the ability to do hard things if I was determined. But most importantly, you taught us all that we each had an impact and that our attention to detail would be critical in our future. . . . I remember being so nervous to ask you about something I didn’t understand, but you were so sweet to me. I realized how much you cared about our understanding then, and how much you just wanted what was best for us and wanted us to succeed. (courtesy of the Shively family)

Over the 2019 spring break Mike was on the San Marcos River training for the Texas Water Safari, a 260-mile canoe race he had excelled at for three decades. The day he returned he was suspended from his professional duties. Under the stress of allegations about his conduct as a member of the UVU faculty, over the course of five months of intense and inconclusive investigation, Mike found it impossible to sleep, lost twenty-five pounds from his already spare frame, and grew increasingly anxious and despondent. The assault on his reputation and the possibility that he might never teach again devastated him.

We mourn the loss of a respected colleague.

The letter that announced the beginning of Mike’s ordeal, dated March 25, 2019, stated that he was suspended from his professional duties, effective immediately, because of serious charges that affected the public interest. Mike was required to gather what he needed from his office and to relinquish his keys, after which he was immediately escorted off the campus where he had worked for 27 years. He was allowed to return only when summoned for sessions related to the investigation. He was isolated by an order restricting contact with colleagues and students. In mid-semester, his students were left with substitute teachers. At some point during the summer, because the investigation was predicted to continue into Fall Semester, a replacement was hired to teach his fall classes. Mike died the first day of the new semester.

The March letter listed six complaints: Mike had violated UVU policy by requiring course books for which he received royalties; he had intimidated and threatened students and employees in ways that caused significant psychological distress; his course requirements and grading were arbitrary and capricious; he had violated the academic freedom of colleagues; he had not adhered to accommodation policies; and he had discriminated and harassed members of protected classes. Mike had indeed collected royalties for his required book after the new policy was adopted. He turned over his publisher’s records to investigators, had his contract with the publisher revised, and agreed to donate royalties to a department fund as required.

The other complaints left him dumbfounded.

Who, he asked, felt intimidated and threatened so seriously that they experienced significant mental distress? And when did that happen? Who had complained about arbitrary and capricious course requirements and grading for courses he had taught successfully for decades and for which he had received teaching awards? Whose academic freedom, he asked, had he violated? When had he failed to follow disability accommodation policies and to cooperate with Accessibility Services? Whom had he harassed and discriminated against?

Why, he asked, does a letter of suspension claiming possible serious harm to colleagues and students include complaints about teaching methods? How could UVU administrators and the lawyer hired by them to investigate the case possibly judge the quality of his anatomy teaching? Why do the allegations read like a prosecutor’s grab bag of charges assembled in the hope that at least one will stick? Is this simply a concerted attempt to end my career, he wondered? And how,
he asked finally, can I possibly defend myself without knowing the specifics of the accusations?

You will know those details only after the investigation is completed, he was told. In the meantime, you are required to appear when summoned and to answer whatever questions the investigator poses.

For support, Mike contacted me, Vice President of the UVU Chapter of the American Association of University Professors, and Alex Simon, President of the UVU affiliate of the American Federation of Teachers. We agreed that I would accompany Mike to his next hearing. I recommended that Mike answer no questions unless he had detailed, specific information about the allegations.

I was turned away from the meeting after a call to UVU’s General Counsel, who said that policy did not allow faculty support at this stage. While Mike continued to meet with the investigator and an Associate Vice President, I appealed that interpretation of policy, Additionally, I addressed the absence of the specific information Mike needed for an adequate response.

As the basis of the appeal, I cited the statement on due process in policy #648 Faculty Reduction / Faculty Discipline:
4.7 Due Process 4.7.1 In all disciplinary, suspension, or termination proceedings, or proceedings regarding academic freedom, the faculty member shall be subject to the following policy provisions:
1) Notice. Written notice shall be delivered personally, or by certified mail, return receipt requested, to the faculty member under investigation. Such notice shall contain the following:
2) Statement of facts. A concise statement of the facts, conduct, or circumstances reported to constitute failure to comply with the Standards set forth in this policy, including the names of those persons making the charges.
Professor Shively did receive a notice, I wrote, but it did not include the names of persons making charges and, other than the royalty question, it failed to state any specific facts to which he might respond.

The General Counsel answered my email, explaining that “Suspensions pending action do not require the elements listed in Section 4.7.1. . . . When a suspension pending action is provided, this is not a disciplinary notice, but instead an interim measure that places the faculty member on a paid leave while the investigation and/or disciplinary action is pending.”

I repeated that the policy promises due process “In all disciplinary, suspension, or termination proceedings . . .” and argued that the member of the faculty would certainly perceive a letter announcing suspension as a disciplinary notice.

The General Counsel further informed me that prior to any suspension, “there has first been an analysis and conclusion by several decision makers, with my office providing legal counsel, that the allegations are serious and that there is a risk to public harm.”

I responded that to decide there is a risk to public harm by a 73-year-old professor whose contributions to UVSC and UVU over many years are legion, and to do so before allowing him to address specific allegations, is simply not right. Fundamental fairness at each step of the process, I argued, heightens the trust we have in one another and provides the most likely avenue to discern the truth of allegations.

Faculty Senator Alan Clarke joined the email exchange with the General Counsel at this point, arguing that “due process means ‘fundamental fairness.’ While it does have legal dimensions which you’ve focused on, such a perspective when applied to university procedures is unnecessarily crabbed. . . . Would it not be better from the university’s perspective to provide as much fairness in the process as possible?”

There was no softening of the University’s position and the investigation continued with no opportunity for my supportive involvement and with no revelation of specific details. It would be months before Mike was finally allowed to know who made the complaints and the substance of those complaints.

Three months after Professor Shively received the initial letter, worried about his increasing anxiety and inability to sleep, I sent an email to President Tuminez, new Provost Wayne Vaught (shortly after his arrival on campus and several weeks before his official duties commenced), and General Counsel Clemes:

21 June 2019

Dear Colleagues,

This letter is in response to the ongoing case of Professor Mike Shively. . . .
Attached, you will find an email thread with details and arguments about what we see as violations of due process. Senate President Thulin and incoming President Arendt were copied on the thread and will go to work in the fall to produce a less ambiguous and more fair policy.

The short version of our concern is that Professor Shively was escorted from campus as a threat to the public interest (this obviously has nothing to do with sales of his book) without any chance to dispute that decision. In subsequent meetings with an Associate Vice President and counsel, he was questioned about supposed violations without having [relevant] details . . . .

How does one defend oneself against accusations lacking any detail, accusations made by unknown persons? How is it possible that you will issue an investigative report on Professor Shively before he has had a chance to give you information based on the names of the complainants and the details of their allegations? He can, of course, respond after he reads the report and he can appeal a negative decision, but shouldn’t your initial decisions be based, in part, on his responses to specific charges by specific people? Shouldn’t the decision to ban him from campus take into account his initial responses to the accusations, not to mention his distinguished career?

It is now the 21st of June, three months since Professor Shively was escorted from campus. It seems unconscionable to keep him in suspense for this length of time, with no communication for weeks now.

Several sleepless weeks later Mike was finally allowed to review the 31-page investigative report and two stacks of exhibits. His reading of the report and notetaking were limited to two hours. When he called me after reading the report, Mike was relieved, he said, but also astonished that he remained isolated and suspended after months of investigation resulting in a report that failed to substantiate the supposed threat to the public interest.

On the 18th of July, Mike wrote a response to the report. He disputed the use of solicited and anonymous complaints. He countered the claim of arbitrary and capricious course requirements: “I have not changed the difficulty of the course or tests in the last 20 years, nor have my department chairs or deans ever expressed a need for me to do so.” He complained about the fact that his book had been sent for review by an academic whose work he had disputed for several decades (and why was his book in question in any case?). And finally, Mike wrote that he was always open to suggestions on how to improve his teaching. Mike was a teacher first and last.

When we spoke after he wrote that letter, Mike wondered if he had been unwise to challenge any of the allegations. Perhaps he should have just agreed to anything that would have made it possible for him to continue teaching. I reminded him that the mismatched set of allegations had been assembled to make a case for termination. They call into question your ability to teach anatomy, although so many of our alumni have reported that your course was outstanding preparation for their careers. Complaints about your book should be evaluated by colleagues whose prerogative it is to control the biology curriculum. Disagreements between colleagues about pedagogy should be a matter for departmental deliberation, not grounds for administrative investigation. By policy, you have the academic freedom to teach your classes according to your best professional judgment. If I had written the letter, I would have requested additional information about the decision to declare you a threat to the public interest. They have kept you under investigative pressure for months. Your mild response is nothing to worry about. Whoever assembled the hodgepodge of allegations is the one who should be concerned.

When he died a month later, Mike had still not received a letter from the UVU administration deciding his case. A negative decision would have triggered the first involvement of Mike’s faculty peers—a Faculty Senate-appointed Due Process Committee, whose charge would have been to evaluate whether due process had been afforded.

How might this deeply flawed process be improved as we look forward?

AAUP recommendations for termination for cause include initial steps to ensure a fair process: “(1) discussions between the faculty member and appropriate administrative officers looking toward a mutual settlement; (2) informal inquiry by the duly elected faculty committee . . . ; (3) a statement of charges, framed with reasonable particularity by the president or the president’s delegate.”

It seems likely that this recommended process would have led to a more reasonable outcome. Let’s imagine how it might have played out in Mike Shively’s case.

(1) In discussions between Mike and administrative officers, before being suspended for issues perhaps affecting the public interest, Mike would have a chance to clarify, to question, to defend himself. If, at this point, issues were still unresolved, the process could move to the second step.
(2) In an informal inquiry, members of the faculty committee might realize that while the other issues need addressing on some level, only the complaint about intimidation and threat to the public interest would require suspension. Investigating that question, they might find sufficient evidence of threat and recommend suspension. Or they might find that the complaint was unfounded and recommend against suspension. If they found the threat substantiated, the process could move to step three.
(3) At this point Mike would receive a formal list of charges listed with reasonable particularity. The question of suspension would hinge on his ability to explain, to question, to factually contest, and/or to accept responsibility.
(4) If he were suspended after these steps, the following formal investigation would have a legitimacy the actual one Mike was subjected to did not.

Repeated decisions by the Holland/Olson administration, along with this case initiated by the Tuminez/Olson administration working on inherited principles, have caused harm to individual members of the faculty and have degraded our confidence that principles of fairness and due process will be adhered to. With a President just beginning her second year and with a new Provost, the administration of UVU is in a good position to rethink how its actions in termination cases might be altered to serve fundamental principles of due process and shared governance.

The Faculty Senate is poised to address a revised policy on faculty discipline, suspension, and termination that will better protect our joint interests. The new administration, if it were so inclined, could show a heightened commitment to shared governance by negotiating the policy with the Senate until all parties are satisfied. This would be an improvement on the historical practice of regarding Senate input only as recommendation.

At a minimum, the revised policy on faculty discipline should require that from the beginning the administration provide anyone accused of misconduct with sufficiently specific charges to allow an informed response. The policy should allow the accused to be accompanied at each step of the process by a faculty advisor as well as a lawyer, if so desired. Complaints should be evaluated by a Senate-appointed committee before action is taken. Any subsequent investigation should be concluded in the shortest possible time.

Finally, the Faculty Senate would do well to investigate the investigation Professor Shively underwent. How was the jumbled list of charges developed and to what purpose? Most critically, what was the specific basis of the decision to suspend him as a threat to the public interest? Why, if the investigation revealed that there was in fact no threat, was the suspension not lifted at whatever time that was established? Instead, descending into despair, Mike was left to contemplate an investigation with no perceivable end and a fall semester during which he would be unable to do what he loved best: teach his anatomy class. The Shively family deserves, as do we all, a clear sense for our joint commitment to due process going forward.

Sincerely,
Scott Abbott

For the David R. Keller Chapter of the AAUP at UVU
Professor of Integrated Studies, Philosophy and Humanities

POSTED BY SCOTT ABBOTT AT 2:19 PM 2 COMMENTS:
LABELS: DUE PROCESS, PROFESSOR MIKE SHIVELY, SHARED GOVERNANCE, TERMINATION OF TENURED FACULTY, UTAH VALLEY UNIVERSITY

WEDNESDAY, OCTOBER 2, 2019

UVU Faculty Senate Resolution on Professor Mike Shively
Yesterday the UVU Faculty Senate overwhelmingly passed the following resolution (in response to which one Shively family member said: “this warms my heart”):

Resolution to Acknowledge the Service of Dr. Michael Shively to the

UVU Faculty Senate and to the UVU Community at Large
Resolution #
The Faculty Senate of Utah Valley University,
Whereas:
Professor Michael Shively, former President of the Faculty Senate, having joined the UVU faculty in 1992, having served as Department Chair, having excelled as the Faculty Athletic
Representative, having taught thousands of students in his rigorous anatomy and physiology classes, having been honored with numerous teaching awards, did pass away on the evening of August 19, 2019,

now, therefore, be it

Resolved, that the Faculty Senate of Utah Valley University, on behalf of its members:
Gratefully acknowledges Dr. Michael Shively’s service as Faculty Senate President, his service to the students of Utah Valley University, and his service to the Department of Biology and to the University in general.
Movers: Lyn Ellen Bennett, Senator-History & Political Science
Kelli Potter, Senator-Philosophy
Alan Parry, Senator-Mathematics
October 1, 2019

POSTED BY SCOTT ABBOTT AT 8:54 AM NO COMMENTS:
TUESDAY, OCTOBER 1, 2019
CIVILITY

The new UVU draft policy on Faculty Rights and Responsibilities refers several times to a responsibility for civility. The AAUP has emphasized the need for civil interactions as we work together at a university, but points out the problems that ensue when civility becomes a criterion for tenure or in termination proceedings.

Here a new essay on civility from the latest issue of the AAUP Journal of Academic Freedom:

https://www.aaup.org/JAF10/compulsory-civility-and-necessity-uncivil-disobedience#.XZQciy2ZM0o

A quotation from the piece:

Some faculty who have been pushed out, fired, bullied, or treated unfairly in tenure and promotion processes have come forward to tell their stories. Steven Salaita is a prime example. He fought back in writing and in court. In 2015 UIUC settled with Salaita for $875,000 and no gag order, but also no job. He writes, “If I could convey a single point about the experience of being fired and ending up as a news story, it would be that oppressive institutions never subdue the agility of mind and spirit. Humans can be disciplined, but humanity comprises a tremendous antidisciplinary force” (Salaita 2015, 4). Noting the administrative rush to issue civility statements and policies, form task forces, and schedule courses following the Salaita firing, AAUP president Rudy Fichtenbaum cautions, “Trying to stifle free expression and academic freedom in the name of civility is at best misguided and at worst a cynical attempt to undermine democracy.” He notes that some of the most important gains for women and racialized groups were due to “uncivil behavior” (Fichtenbaum 2014), or what Crenshaw and others label “backtalk.”

Civility is wonderful as an aspirational goal. It can be devastating when required.

POSTED BY SCOTT ABBOTT AT 10:00 PM NO COMMENTS:

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