The University’s faculty- and staff-run Senate is in the process of creating a committee to examine whether University policy and state law should provide legal protection for faculty members when they’re sued over materials they publish while employed by the University.
The issue arose after University law professor Merle Weiner was threatened with a lawsuit after referring to a domestic violence court case in her article, “Strengthening Article 20,” which was published in the University of San Francisco LawReview in 2004.
Jurgen Aldinger, a defendant in the original case, claimed Weiner’s reference was defamatory.
The University would not protect Weiner in the case, so she sought private counsel, Weiner said. The dispute was settled out of court.
Her article deals with child abduction and domestic violence victims’ rights to secure guardianship. The article, which addresses Article 20 of the Hague Convention, argues that children shouldn’t be returned to an unsafe home because it violates human rights principles.
Because of her connections as a lawyer and University law professor, Weiner received free representation by the law firm Johnson, Clifton, Larson & Schaller of Eugene.
“I had resources … and it was still very difficult,” Weiner said. “A faculty member in the sciences or any other department would be left hanging.”
Weiner used sections from the Oregon Revised Statutes and the University’s Faculty Handbook to argue against the University administration’s claim that publishing the article was a personal act.
“I don’t think the University is living up to its obligations under the law,” Weiner said. Either the Oregon Tort Claims Act or the University’s policy needs to be changed, she said.
Weiner stated in a 32-page report that “because the University explicitly directed me to engage in scholarly publishing … and directed me to continue publishing throughout the course of my employment at the University, publishing ‘Strengthening Article 20′ is precisely the kind of work that I was hired to perform.”
Weiner wrote “Strengthening Article 20″ while on sabbatical from Aug. 16, 2003 to May 15, 2004, “for the precise purpose of writing a published article.” This kind of publication “directly serves the University’s mission as a flagship research university,” she wrote in her claim.
“Any claim that I departed from the scope of my employment or duties … is not only untenable but barred by the University’s own admissions,” Weiner wrote.
The University said Weiner’s claim was related to work done outside her role as a University employee, according to Weiner’s report.
Melinda Grier, general counsel to the University, did not return multiple Emerald phone calls and e-mails on Friday and Monday asking for comment about the Senate committee or Weiner’s case in general.
The Oregon Department of Administrative Services Policy Manual states that “we will pay and defend claims against you for torts which you are alleged to have committed, while acting within the scope of your employment or duties.”
The DAS Policy Manual also says, “The state covers only claims, which arise in the scope of your performance of your state duties under the direction and control of the state.”
Assistant professor of law and faculty Senator Judd Sneirson, acting as a law school representative to the Senate, brought the issue to the Senate Executive Committee’s attention on Nov. 14.
Senate President Peter Keyes said the new committee will look into the issue at the Jan. 11 meeting.
“We will be going forward with the ad hoc research committee, and asking Judd Sneirson et al to work on defining this issue, doing some more groundwork, etc,” Keyes wrote in an e-mail.
Hollis Professor of Law Garrett Epps, formerly a staff writer for The Washington Post and visiting associate professor at Boston College of Law and Duke Law School, helped Weiner deal with defamation law.
“We thought it set a bad precedent to basically cave in on an academic freedom issue,” Epps said.
Together, Weiner and Epps sought outside advice from Rodney A. Smolla, dean and Allen professor of law at the University of Richmond and author of “Free Speech in an Open Society.” Smolla read Weiner’s article and said Weiner would likely win if a lawsuit was filed and went to trial.
She was put in a difficult bargaining position, she said, because the University would not indemnify her. Also, the University of San Francisco, a co-defendant in Weiner’s case, had offered to remove electronic and hard copies of the article. The reference to Aldinger’s case was removed, which Weiner said cheapened the article.
“My opinion is that the University has their priorities wrong,” Weiner said.
Grier encouraged Weiner to remove the reference to the Aldinger case in an e-mail dated March 30.
“While I understand your frustration with Mr. Aldinger, when I step back and look at what (University of San Francisco) is proposing, it seems a reasonable way to resolve this without undermining or reducing in anyway the power and quality of your article,” Grier’s e-mail states.
The University hired Weiner in 1998 and awarded her tenure in 2000.
Weiner received a letter from former law school dean Rennard Strickland in May 2003 that read: “This is exactly the type of work that is so important for our faculty to engage in and that will bring much justified credit not only to you but to the school.”
“The University has basically shut down and will not deal with us on this issue,” Epps said. “The Senate may have a better chance.”
“It was a very alienating feeling because the University was abandoning me, basically,” Weiner said.
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