I do not know Dr. Walsh. Never met the man and I am confident we are not related. But since we share the same last name, I read the decision in his case from the 5th Circuit with interest. Dr. Walsh was fired from his job as a medical professor at the University of North Texas Health Science Center based on allegations of sexual harassment. The case is not only interesting—it’s important. It addresses the level of due process an employee is owed prior to termination based on accusations that could be career damaging.
The graduate student alleged that things got out of hand one night as she attended a medical conference along with Dr. Walsh. There was another graduate student with her, and two other faculty members. The court’s description of the evening will sound familiar to anyone who has attended the Mid-Winter Conference:
The conference included a formal banquet consisting of a reception, dinner, and dancing. All parties consumed alcohol, and the evening soon became “festive and somewhat boisterous.”
From there, the perceptions of the parties diverged. Dr. Walsh admitted to flirtation, but insisted that it was mutual and that he was given no indication that it was unwelcome, or that his student was uncomfortable. The student said that she was uncomfortable with her professor’s unwanted attention. She noted that he repeatedly offered to escort her to her room, and sent her what she thought was a suggestive email the next morning. Dr. Walsh said the escort offer was due to his concern over how much she had been drinking. The student left the conference two days early due to her discomfort, and promptly filed a complaint with the university.
The university hired a lawyer to investigate the matter. The lawyer interviewed all five of the people who were at the banquet and concluded that the interviews substantiated the student’s complaint. Based on that, the university began termination proceedings. The matter came to a hearing before the Faculty Grievance and Appeal Committee. The Committee voted to terminate Dr. Walsh’s employment.
Dr. Walsh sued, alleging a violation of procedural due process. His main gripe was that he never had the opportunity to directly question his accuser. In fact, the graduate student (identified in court proceeding as Student #1) did not testify at the hearing at all. Instead, the lawyer who investigated the matter provided “snippets of quotes” from the student. Dr. Walsh was allowed to question the investigator, but not the student who was accusing him. Is that a deprivation of the process due to Dr. Walsh under these circumstances?
The 5th Circuit said that it was:
In this case, where credibility was critical and the sanction imposed would result in loss of employment and likely future opportunities in academia, it was important for the Committee to hear from Student #1 and Walsh should have had an opportunity to test Student #1’s credibility.
However, the court quickly qualified that, noting that Dr. Walsh was not entitled to do the questioning himself:
We are not persuaded, however, that cross examination of Student #1 by Walsh personally would have significantly increased the probative value of the hearing.
Instead, the court held that it would have been adequate for the Faculty Committee to do the questioning, as long as they also allowed Dr. Walsh to submit the questions he wanted to ask.
This decision is only about the personal liability of the individuals on the Committee who participated in the decision. They all claimed “qualified immunity” and the 5th Circuit held that they were entitled to it. Even though they had deprived Dr. Walsh of the process to which he was due under the Constitution, the law was not “clearly established” on that point. The court noted how murky the standards have been for exactly how a termination hearing like this must be conducted. Murky legal standards mean that the law is not “clearly established” which means that individual defendants get off the hook for violating the Constitution.
So what do we learn? At the university level, before a contractual employee can be fired based on sexual harassment charges they must be given an opportunity to test the credibility of their accuser. This does not have to include direct questioning by the person accused. It can be done by a third party, but the person whose job is on the line must be allowed to submit questions.
The court never cites the new Title IX regulations, but its ruling is consistent with them. The Title IX regulations require a process at the college level that includes direct questioning of the person who is alleging sexual harassment. But remember: standards are different at the K-12 level. Public schools are not required to subject young students to such a face-to-face encounter.
Our firm continues to offer training regarding Title IX. Let us know if we can help you out with that.
Walsh v. Hodge was decided by the 5th Circuit on September 15, 2020, and can be found at 2020 WL 5525397.
DAWG BONE: DUE PROCESS STANDARDS VARY DEPENDING ON MANY FACTORS.
Tomorrow: Is an “abrogator” a swamp creature? Or a judge?